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Senator BRICKER. I mentioned one or two other fields this morniru in which there would be great difficulty if it were left to the Stat themselves. There is the matter of recognition of automobile licens am and the question of ownership of land has been discussed here alread I think very ábly. What have you to suggest on that?
Senator Smith. May I ask you right there, couldn't that be done 1 way of interstate compacts?
Nr. DEUTSCH. That is what we were mentioning.
Mr. DEUTSCH. We mentioned compacts between the States or betwer the States and the Federal Government.
Senator BRICKER. That could be done individually by the Stat through compact or through agreement with the Federal Gover. ment or through the Federal Government if the courts would streto the commerce clause sufficiently.
Mr. DEUTSCH. Or some other clause.
Mr. DEUTSCH. I think maybe "stretch” is a bad word. I would sa "give them adequately wide scope.” Senator BRICKER. That is what they have been doing.
Mr. DEUTSCH. One of our former Congressmen from Louisian James O'Connor, made the statement that he was a great believe in the elasticity of statutory construction.
Senator BRICKER. That is what we are trying to get at, of course. Mr. DEUTSCH. Exactly. And as for your further questions, I am in complete accord wit what has already been said. I see no insurmountable obstacle in t - * land questions, in the practicing of the profession, in the carrying o of trade, and I see no reason why that cannot be done through tł States, or if any such great problem is ever met which cannot be solve in that way, ultimately we can have a constitutional amendment t deal with it just as we have had 22 so far. We had to enact one t limit the President's term after 160 years, and we can have other as occasions may arise in that regard.
Senator BRICKER. It is that field in which I was vitally intereste here, that we do not preclude proper Federal action.
Mr. DEUTSCH. That is right.
Mr. DEUTSCH. May I hold it just a moment to complete the tail en portion of my presentation?
The CHAIRMAN. Yes.
Mr. DEUTSCH. In the September 1952 issue of the American Ba Association Journal appears an article entitled “The Need for a Treat Amendment-a Reply," which was published over my name, bu which, as a practical matter, states the position of the American Ba Association on this matter, and I would ask leave to put that into th record along with my statement.
The CHAIRMAN. T'he record will so show.
The article referred to is as follows:)
THE NEED FOR A TREATY AMENDMENT: A RESTATEMENT AND A REPLY
St. George Tucker, a distinguished legal scholar, for some years an 19. In member of Congress from Virginia, and a former president of the
a Bar Association, in his great book, Limitations on the Treaty-Making am published in 1915, characterized the treaty clause of the Constitution *) as a "Trojan Horse," ready to unload its hidden soldiery into our intring State laws and constitutions, and leaving behind the wreckthe dream of the Founding Fathers which envisioned maintenance of the dubstitutional balance between State and Federal power, and preser
the Bill of Rights intact.
do we need a constitutional amendment to regulate the treaty-power? in or the treaty-making power under the constitutional provisions which
en changed since 1789, now give rise to such a powerful movement 2n these provisions? There are three reasons:
In what is otherwise a government of limited and delegated powers under * Estitution, no express limitation exists on the treaty-power, and the * of any implied limitation is shrouded in doubt.
4 basic change of viewpoint is being carried into effect with respect t.actions and purpose of treaties. A veritable avalanche of new treaties *pored by the United Nations and its affiliated organizations in the 2 nybomic, cultural, and civil and political fields. It is reliably reported * seg bare 200 treaties "in the works.". : Persistent efforts have been made during the past two decades to find
Di constitutional basis for expansion of the powers of the Federal Gov321, the treaty-power has been seized upon as a conveniently avail
de for such expansion. marts of Congress are valid only when made “in pursuance of the
0, treaties are the supreme law of the land if they are made “under ity of the United States." Under a treaty, Congress, by virtue of
1. stion 8, can pass all laws necessary and proper to give effect to potuent treaties, even though, in the absence of such treaty, Congress -: blare power under the Constitution to pass such legislation; neither me station nor understanding can this power of Congress be controlled
(booses to exercise it.2
berity of Congress under the treaty clause was expounded in the leading *?\.souri v. Holland (252 U. S. 416 (1920)), in which it was held that * bas puwer under a treaty to enact legislation which would be uncon.:21. in the absence of a treaty. Professor Lauterpacht, of Cambridge **, J. England, a recognized contemporary authority on international law,
yfterize the decision in Missouri v. Holland as a construction “dan"I approaching that of a constitutional amendment." The trend toward
Se treaty power was further developed in United States v. Curtiss***! oporation (299 U. S. 304, 316-19 (1936)), in which the Court in broad
? erroneously regarded the treaty power not as a delegated power but .tr inherent in sovereignty."
s 75 A. B. A. Rep. 553 (1950) ; see also Who Was Who, volume 1, page 1256. * curse characterization occurs on page 339 of his book. Alpot represents the agreed views of the American Bar Association's com
ne and law through United Nations, and of that association's section of
and comparative law in a joint report. See Report of Committee on Peace ** Setember 1, 1951, page 36.
total Bill of Rights of Man, p. 179. mind and the decisions based on the law of nations cited by the court confirm
133f the Curtiss-Wright decision confuses the position of the United States ter interntaional law by foreign nations with the position of the United States
al relations as a matter of domestic constitutional law. Under the Constitu*****5 power is expressly delegated to the l'nited States (art. II, sec. 2) and
vited to the States (art. I, sec. 10). Other cases accurately refer to the *** as having been "delegated expressly." See Missouri v. Holland (252 U. S. 2.4 cases cited in Report of Committee on Peace and Law, February 1, 1952 2. May 1, 1952), page 8. The report referred to analyzes and criticizes the
A similar criticism of that case is found in Mr. Justice Jackson's un in the Steel Seizure cases, decided June 2, 1952, footnote 2, in which
of the Court's opinion is dictum," and points out that the case involved **** Ipressly delegated to the President in an act of Congress.
While some argument has been made that such dicta as contained in Titten Cherokee Tobacco (11 Wall. 616, 620–1 (1870)) and Geofroy v. Riggs (1 zes U. S. 258, 267 (1889))-the treaty power does not "authorize what the Consti tution forbids”-should abate all fears on this subject, the fact remains th:41 Missouri v. Holland, supra, and United States v. Curti88-Wright Corporatic tube supra, go in the opposite direction toward an unlimited treaty power.
In Missouri v. Holland, supra, it was recognized that the Constitution d forbid congressional control over migratory birds in the sense that the power mas was not delegater', and was, therefore, reserved to the States under the ten amendment. It had been so held in cases cited in the Court's opinion. T Curtiss-Wright case, supra, dealt only with an express congressional delegati of power to the President authorizing him in certain circumstances to forbid t. sale of arms to foreign countries, and did not involve the treatymaking powe, nevertheless broad dicta were made with reference to it, which viewed from t] standpoint of international law through the eyes of a foreign nation may acceptable, but not as domestic constitutional law, under which the treatymakii din power is a delegated power.
QUESTION SHOULD BE SETTLED ONCE AND FOR ALL TIME
In any event, since the last dozen years have seen hundreds of earlier decisioreale overruled and disregarded, it seems appropriate not to rest content on the dic make a of early cases, but to settle by unequivocal language once and for all time th: 79 treatymaking power cannot be used for purposes in conflict with the Constit i ri tion.
Richard Henry Lee, of Virginia, and Patrick Henry, of Virginia, both strong freno objected to the treaty clause at the time the adoption of the Constitution were under debate.? It is clear from the sharp debates over the lodgment of tł treaty power, and the effect of its exercise, that the founding fathers definite visualized the possible need for amendment.® Jefferson, who, by reason of h. ambassadorship to France, was not a member of the Constitutional Conventios de: did concern himself greatly with ratification and with the first 10 amendment and in his Manual of Parliamentary Practice had this to say:
"By the general power to make treaties, the Constitution must have intende to comprehend only those objects which are usually regulated by treaties, an. cannot be otherwise regulated.
"It must have meant to except out all those rights reserved to the States; To homber surely the President and the Senate cannot do by treaty what the whole Gover ment is interdicted from doing in any way." [Italics supplied.]
The addition of the Bill of Rights to the original Constitution was though to have counteracted the dangerous loophole in the treaty supremacy clause c article VI and to control its interpretation. It is certainly plain from the whol history of the Constitution and of the first 10 amendments that it was never ir tended, or even remotely contemplated, that the established constitutional balancNatio hetween State and Federal power could be substantially upset by the exercise o the treaty power,
At the time the Constitution was adopted and until recently, treaties entere into by the United States were compacts in the primary sense of duties and obli me, in gations imposed on the contracting States, and not on individual citizens.
Alexander Hamilton stated that treaties “are contracts with foreign nation the in which have the force of law, but derive it from the obligations of good faith ctially They are not rules prescribed by the sovereign to the subject, but agreement bet sa hetween sovereign and sovereign.”
Today, however, treaties are being proposed, and at least one has been sub: Huma mitted to the Senate for ratification, which impose civil and criminal liabilit: for acts of citizens of the United States, or which affect rights of and impose
5 See State Department Bulletin, December 31, 1951, p. 1062. In United States v. Neu Orleans, 10 Pet. 662, 763 (1836), 'the Court said: "The Government of the United States as was well observed in the argument, is one of limited powers It can exercise authorit: over no subjects, except those which have been delegated to it. Congress cannot, by legis lation, enlarge the Federal jurisdiction, nor can it be enlarged under the treatymaking power.' The reasoning of this case conflicts with Missouri v. Holland. See 37 A, B, A. J 856, footnote 131.
& See frotnote 4.
? See Eberhard P. Deutsch, the Treaty-Making Clause: A Decision for the Americar People, 37 A. B. A. J. 662 (1951). 3 Elliot's Debates (2d ed.) 503.
8 2 Farrand, Records of the Federal Convention (rev. ed. 1937), p. 370; see also 3 Farranó, 136. 286-287 ; 1 Farrand 164, 245 ; 2 Farrand 297.
• The Federalist, No. 70.
and obligations on, citizens of the United States, in areas heretofore within wired powers of the States. 10
ate Chief Justice Charles Evans Hughes, former Secretary of State and 2 Judge of the Permanent Court of International Justice at The Hague, 122 as President of the American Society of International Law, said to sna
ava April 26, 1929 : Take the Constitution to mean what it says, it gives in terms to the
States the power to make treaties. It is a power that has no explicit -24 attached to it, and so far there has been no disposition to find in ** relating to the external concerns of the Nation a limitation to be ra there is, however, a new line of activity which has not been very notice• 'his country, but which may be in the future, and this may give rise ** questions as to the extent of the treatymaking power. I have been
I what I have said to refer to the external concerns of the Nation. vd not care to roice any opinion as to an implied limitation on the treaty* poret. The Supreme Court has expressed a doubt whether there could sincả. That is, the doubt has been expressed in one of its opinions. But There is a limitation to be implied, I should say it might be found in the part the treatymaking power. Todo is the power to make a treaty? What is the object of the power? The me a npe of the power can be found in the appropriate object of the power. +7+r is to deal with foreign nations with regard to matters of international
It is not a power intended to be exercised, it may be assumed, with * Latters that have no relation to international concerns. So if we attempted to use the treatymaking power to deal with matters . did not pertain to our external relations but to control matters which norad appropriately were within the local jurisdictions of the States, then
here might be ground for implying a limitation upon the treatymaking Ta that it is intended for the purpose of having treaties made relating to catairs and not to make laws for the people of the United States in their
Liberns through the exercise of the asserted treatymaking power” 41 : supplied.)
** be present State Department takes a position contrary to the implied 1 suggested by the late Chief Justice. In a statement released by the Pimpartment in September 1950, with foreword by President Truman, it is
te opening sentence:
is no longer any real distinction between 'domestic' and 'foreign' Swifef. notwithstanding the provision in chapter 1, article 2, paragraph 7, statal Nations Charter that "nothing contained in the present Charter marize the Cnited Nations to intervene in matters which are essentially
domestic jurisdiction of any state,” the broad claim is made by proin the use of treaties to enact world law binding within the United peu a matter has become, in one way or another, the subject of regulation by
und Nations, be it by resolution of the General Assembly, or by convention * member states at the instance of the United Nations, that subject ceases ***ter being 'essentially within the domestic jurisdiction of the member
As a matter of fact, such a position represents the official view of the * Nations, as well as of the member states that have voted in favor of the
Declaration of Human Rights.” 13
Allen, the Treaty. As an Instrument of Legislation (Macmillan Co., New ". Pp. 10 and 11. Judge Allen is a United States circuit judge for the sixth pendings of the American Society of International Law, 1929, pp. 194–196.
3 sentence of State Department Publication 3972, Foreign Policy Series 26, sbs President Truman. Kakowitz, Is the U. N.'s Bill of Human Rights Dangerous ?, 35 A. B. A. J. 283.
Compare also the statement of John P. Humphrey, formerly Director of the * Hazan Rights of the United Nations : "What the United Nations is trying to ticary in character. Human rights are largely a matter of relationships Se state and individuai, and therefore a matter which has been traditionally bring within the domestic jurisdiction of the states. What is now being pro
ut the creation of some kind of supranational supervision of this relation
o the state and its citizens." (Annals of American Academy of Political and 2. January 1949.) And Mr. Moskowitz in the article just referred to, says
of a supranational supervision of the relationship of a state to its own n. 1s the real crux of the matter, revolutionary as it may appear.
The growing tendency to undertake to create a basis for enlarging Fede power by congressional enactments under the treaty clause, not otherwise wit] the constitutional grant of legislative power in the absence of a treaty, is ill trated by the Report of the President's Committee on Civil Rights:
"The Human Rights Commission of the United Nations is working on a detai international bill of rights designed to give more specific meaning to the gene purpose announced in article 55 of the Charter. If this document is accept by the United States as a member state, an even stronger base for congressioi action under the treaty power may be established.” 14
Indeed, it is asserted (Report of Section of International and Comparati Law to the House of Delegates of the American Bar Association, Mid-YE Meeting, February 25-26, 1952) that “so far as the requirement of indictment grand jury and trial by jury are concerned, these apply only to trials in t Federal courts, and can have no application to an international court set up a group of nations in the exercise of their treatymaking powers.
There no reason why such courts may not be created in the exercise of the treat making power."
In other words, it is claimed that the United States Government can provi under the treatymaking power for the trial abroad of an American citizen, i offenses committed here, by methods and in places (see sixth amendment) whi the Constitution forbids, and without the safeguards which the Constituti commands,"
DISSENT IN STEEL CASE SHOWS THE DANGER In the Steel Seizure cases, Chief Justice Vinson, dissenting, with the suppo of two other judges, made the pronouncement that the United Nations Chart and the North Atlantic Treaty, being treaties, whose purpose is the suppressi of agression, give the President the power to seize private property, though : lackx statutory authority, and though the majority of the Court holds he h no such power under the Constitution, and that he is denied the power under t arth amendment to take property without due process of law and without ju compensation. It two additional judges had accepted the view of the Chi Justice, the treaty known as United Nations Charter and the North Atlant Troy, made by the President and consented to by the Senate, would ha oftered a fundamental change in the American form of government without t] Cong , as such, or the States or the people (to whom all powers not delegate are reserved under the 10th amendment) having anything to say about tl matter,
The laws of the several States require lawyers to be first and foremost citizei of the United States and to swear allegiance to the Constitution of the Unite States The treaty with Israel recently transmitted to the Senate by the Pres cont and the State Department provides that nationals of either country sha not be burred from practicing professions in the other country by reason of the being aliens, if they comply with other requirements, such as residence and cor potenceInder the most favored-nation clause included in many treaties 1 which the Quited States is a party, the foregoing provision, if it goes into effec would automatically be applicable to the nationals of a very large number « countries. In number of States teachers in primary and secondary schoo. are required to be citizens of the United States. Many bar associations hav protested this case in the Israel treaty to the Senate Foreign Relations Con mittee an insound and dangerous, and as an improper invasion of the right roserved to the States.
An An amal recent instance of a treaty changing domestic law, we have th Warnw convention relating to international air transportation, approved by tb United States Senate some years ago. It now appears that this treaty deprive American citizens of their right to complete trial by jury, because it is the es sence of a constitutional jury trial in this country in a civil case that the jur; shall determine the amount of damage that is fair and reasonable. The Warsas ('onvention contains a provision limiting the damage liability of internationa air carriers for personal injury or death of passengers in aircraft disasters t the sum of 125,000 gold French francs, or the equivalent, in United States cur rency, of approximately $3,300, a hopelessly inadequate sum. The limitation o
1* Report of President's Committee on Civil Rights, paragraph 10. 15 Ser Report of Committee on Peace and Law, September 1, 1951, p. 30. 16 Youngstoun Sheet & Tube Co. V. Sauyer, June 2, 1952, 72 s. Ct. 863, 929.