Senator BRICKER. I mentioned one or two other fields this mornin in which there would be great difficulty if it were left to the Stat themselves. There is the matter of recognition of automobile licens and the question of ownership of land has been discussed here alread I think very ably. What have you to suggest on that?

Senator SMITH. May I ask you right there, couldn't that be done l way of interstate compacts?

Mr. DEUTSCH. That is what we were mentioning.

Senator BRICKER. There is no question about that.

Mr. DEUTSCH. We mentioned compacts between the States or betwe 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 stret the commerce clause sufficiently.

Mr. DEUTSCH. Or some other clause.

Senator BRICKER. Yes.

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 believ 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 th 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 th 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.

The CHAIRMAN. Senator Smith, have you a question?

Senator SMITH. It was answered. I have no other question.

The CHAIRMAN. Senator Watkins?

Senator WATKINS. I have no questions.

The CHAIRMAN. How about the staff?

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, b 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. The record will so show.

The article referred to is as follows:)

THE NEED FOR A TREATY AMENDMENT: A RESTATEMENT AND A REPLY

By Eberhard P. Deutsch, of the Louisiana Bar (New Orleans))

ry St. George Tucker, a distinguished legal scholar, for some years an ing member of Congress from Virginia, and a former president of the can Bar Association,1 in his great book, Limitations on the Treaty-Making published in 1915, characterized the treaty clause of the Constitution VI) as a "Trojan Horse," ready to unload its hidden soldiery into our troying State laws and constitutions, and leaving behind the wreckthe dream of the Founding Fathers which envisioned maintenance of the sted constitutional balance between State and Federal power, and preserof the Bill of Rights intact.

do we need a constitutional amendment to regulate the treaty-power? des the treaty-making power under the constitutional provisions which * been changed since 1789, now give rise to such a powerful movement d those provisions? There are three reasons:

T

In what is otherwise a government of limited and delegated powers under stitution, no express limitation exists on the treaty-power, and the of any implied limitation is shrouded in doubt.

A basic change of viewpoint is being carried into effect with respect functions and purpose of treaties. A veritable avalanche of new treaties sponsored by the United Nations and its affiliated organizations in the enomic, cultural, and civil and political fields. It is reliably reported they have 200 treaties "in the works."

Persistent efforts have been made during the past two decades to find Lal constitutional basis for expansion of the powers of the Federal Govand the treaty-power has been seized upon as a conveniently availehicle for such expansion.

acts of Congress are valid only when made "in pursuance of" the den, treaties are the supreme law of the land if they are made "under Lority of the United States." Under a treaty, Congress, by virtue of - 1, sction 8, can pass all laws necessary and proper to give effect to pement treaties, even though, in the absence of such treaty, Congress - have power under the Constitution to pass such legislation; neither vation nor understanding can this power of Congress be controlled chooses to exercise it.2

thority 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 has power under a treaty to enact legislation which would be unconin the absence of a treaty. Professor Lauterpacht, of Cambridge 5. England, a recognized contemporary authority on international law, acterized the decision in Missouri v. Holland as a construction "danY approaching that of a constitutional amendment." The trend toward ed treaty power was further developed in United States v. CurtissCorporation (299 U. S. 304, 316-19 (1936)), in which the Court in broad te erroneously regarded the treaty power not as a delegated power but *-*er inherent in sovereignty.*

993

see 75 A. B. A. Rep. 553 (1950); see also Who Was Who, volume 1, page 1256. a borse" characterization occurs on page 339 of his book. *ement represents the agreed views of the American Bar Association's comare and law through United Nations, and of that association's section of al and comparative law in a joint report. See Report of Committee on Peace September 1, 1951, page 36.

Rational Bill of Rights of Man, p. 179.

ed (and the decisions based on the law of nations cited by the court confirm that the Curtiss-Wright decision confuses the position of the United States der interntaional law by foreign nations with the position of the United States al relations as a matter of domestic constitutional law. Under the Constituay power is expressly delegated to the United States (art. II, sec. 2) and ibited 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. and cases cited in Report of Committee on Peace and Law, February 1, 1952 May 1, 1952), page 8. The report referred to analyzes and criticizes the case. A similar criticism of that case is found in Mr. Justice Jackson's on in the Steel Seizure cases, decided June 2, 1952, footnote 2, in which Met of the Court's opinion is dictum," and points out that the case involved *er expressly delegated to the President in an act of Congress.

While some argument has been made that such dicta as contained in T Cherokee Tobacco (11 Wall. 616, 620-1 (1870)) and Geofroy v. Riggs (1 U. S. 258, 267 (1889))-the treaty power does not "authorize what the Cons tution forbids"-should abate all fears on this subject, the fact remains th Missouri v. Holland, supra, and United States v. Curtiss-Wright Corporatio 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 pow was not delegated, 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 treatymaki 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 decisio overruled and disregarded, it seems appropriate not to rest content on the dic of early cases, but to settle by unequivocal language once and for all time th treatymaking power cannot be used for purposes in conflict with the Constit

tion.

Richard Henry Lee, of Virginia, and Patrick Henry, of Virginia, both strong objected to the treaty clause at the time the adoption of the Constitution wa under debate. It is clear from the sharp debates over the lodgment of th 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 Conventio 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, ar cannot be otherwise regulated.

"It must have meant to except out all those rights reserved to the States; f 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 article VI and to control its interpretation. It is certainly plain from the who history of the Constitution and of the first 10 amendments that it was never in tended, or even remotely contemplated, that the established constitutional baland between State and Federal power could be substantially upset by the exercise 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 obl gations imposed on the contracting States, and not on individual citizens.

Alexander Hamilton stated that treaties "are contracts with foreign nation which have the force of law, but derive it from the obligations of good faith They are not rules prescribed by the sovereign to the subject, but agreement hetween sovereign and sovereign.""

Today, however, treaties are being proposed, and at least one has been sub 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 impos

See State Department Bulletin, December 31, 1951, p. 1062. In United States v. Ne Orleans, 10 Pet. 662, 763 (1836), the Court said: "The Government of the United State 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 treatymakin power." The reasoning of this case conflicts with Missouri v. Holland. See 37 A. B. A. 856, footnote 131.

See footnote 4.

7 See Eberhard P. Deutsch, the Treaty-Making Clause: A Decision for the America People, 37 A. B. A. J. 662 (1951). 3 Elliot's Debates (2d ed.) 503.

82 Farrand, Records of the Federal Convention (rev. ed. 1937), p. 370; see also 3 Farran 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 erved powers of the States.10

Late Chief Justice Charles Evans Hughes, former Secretary of State and Judge of the Permanent Court of International Justice at The Hague, ng as President of the American Society of International Law, said to dy on April 26, 1929:

we take the Constitution to mean what it says, it gives in terms to the d States the power to make treaties. It is a power that has no explicit tion attached to it, and so far there has been no disposition to find in grelating to the external concerns of the Nation a limitation to be Now there is, however, a new line of activity which has not been very notice- this 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 in what I have said to refer to the external concerns of the Nation. wid not care to voice any opinion as to an implied limitation on the treatypower. The Supreme Court has expressed a doubt whether there could mrch. That is, the doubt has been expressed in one of its opinions. But here is a limitation to be implied, I should say it might be found in the the treaty making power.

That is the power to make a treaty? What is the object of the power? The scope of the power can be found in the appropriate object of the power. yer 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 to matters that have no relation to international concerns. if we attempted to use the treatymaking power to deal with matters ⚫nd not pertain to our external relations but to control matters which norand appropriately were within the local jurisdictions of the States, then here might be ground for implying a limitation upon the treatymaking That it is intended for the purpose of having treaties made relating to affairs and not to make laws for the people of the United States in their concerns through the exercise of the asserted treaty making power" supplied.]

41

the present State Department takes a position contrary to the implied 1 suggested by the late Chief Justice. In a statement released by the partment in September 1950, with foreword by President Truman, it is the opening sentence:

is no longer any real distinction between 'domestic' and 'foreign'

Ter, notwithstanding the provision in chapter I, article 2, paragraph 7, ted Nations Charter that "nothing contained in the present Charter 4horize the United Nations to intervene in matters which are essentially - the domestic jurisdiction of any state," the broad claim is made by proof the use of treaties to enact world law binding within the United

-

a matter has become, in one way or another, the subject of regulation by Nations, be it by resolution of the General Assembly, or by convention member states at the instance of the United Nations, that subject ceases Datter 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

E 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 edings of the American Society of International Law, 1929, pp. 194-196.

sentence of State Department Publication 3972, Foreign Policy Series 26, d by President Truman.

Moskowitz. 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 Human Rights of the United Nations: "What the United Nations is trying to tionary in character. Human rights are largely a matter of relationships he state and individual, and therefore a matter which has been traditionally being within the domestic jurisdiction of the states. What is now being proct, the creation of some kind of supranational supervision of this relationthe state and its citizens." (Annals of American Academy of Political and , January 1949.) And Mr. Moskowitz in the article just referred to, says dea of a supranational supervision of the relationship of a state to its own is 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 with 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 congression action under the treaty power may be established." 14

Indeed, it is asserted (Report of Section of International and Comparat 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 trea 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,

13

DISSENT IN STEEL CASE SHOWS THE DANGER

16

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 aggression, give the President the power to seize private property, though lacks 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 frth amendment to take property without due process of law and without ju compensation. If two additional judges had accepted the view of the Chi Justice, the treaty known as United Nations Charter and the North Atlant Treaty, made by the President and consented to by the Senate, would ha effected a fundamental change in the American form of government without t Congress, as such, or the States or the people (to whom all powers not delegat are reserved under the 10th amendment) having anything to say about t

matter,

The laws of the several States require lawyers to be first and foremost citize 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 dent and the State Department provides that nationals of either country sha not be barred from practicing professions in the other country by reason of the being aliens, if they comply with other requirements, such as residence and co petence. Under the most-favored-nation clause included in many treaties which the United 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 a number of States teachers in primary and secondary schoo are required to be citizens of the United States. Many bar associations hay protested this clause in the Israel treaty to the Senate Foreign Relations Con mittee as unsound and dangerous, and as an improper invasion of the right reserved to the States.

As an actual recent instance of a treaty changing domestic law, we have th Warsaw Convention relating to international air transportation, approved by th 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 e 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 Warsa Convention 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 cu rency, of approximately $8,300, a hopelessly inadequate sum. The limitation o

14 Report of President's Committee on Civil Rights, paragraph 10.

15 See Report of Committee on Peace and Law, September 1, 1951, p. 30.

10 Youngstown Sheet & Tube Co. v. Sawyer, June 2, 1952, 72 S. Ct. 863, 929.