clause of the Warsaw Convention, being a treaty, has been held to be law of the land and to override State law and policies." aber example of the impact of treaties on the judicial mind occurred on 3, 1962, in Idaho, where Judge Preston Thatcher of the sixth circuit, at ****, decided that the United Nations Charter was supreme over State The plaintiff's attorney in that case undertook to ask the wife of the in a suit to quiet title whether her husband was a citizen of the States at the time of marriage, for the purpose of showing that if the and was not, he could not own land under Idaho's alien land law. Judge Dealed that the United Nations Charter "prohibits discrimination by race" and supersedes the alien land law of the State of Idaho.1 that the Supreme Court of California, refusing to follow the intermeKellate court of that State, has recently held that articles 55 and 56 of Nations Charter are not self-executing, and therefore those treaty do not ipso facto invalidate the alien land law of the State of CaliLeted by the people in 1920; 19 but the majority of that court found that Zed Nations Charter represents "a moral commitment of the foremost "; and it seems fairly clear that (just as in Perez v. Lippold (198 a4 to 3 decision invalidating California's law prohibiting mixed mardecided by the same court with the identical division of judges in 1948) ty opinion of the Supreme Court of California, in holding the Calion land law invalid under what it conceived to be a more modern conthe equal protection clause of the Federal Constitution, was influenced by ral commitments" of the Charter. Hence, while the Supreme Court of holds that the United Nations Charter is not a self-executing treaty 155 and 56, the Charter produces the same effect on the judicial mind, the result that the majority of the judges adopt a new construction of the tection clause of the fourteenth amendment, disregarding earlier State States Supreme Court decisions on the identical statute to the the foregoing evolution in the purpose and scope of treaties and their established impact on judicial thinking, and the veritable barrage of ties sponsored by the United Nations and its affiliated organizations,22 ve given rise to the widespread demand for a constitutional amendment it impossible hereafter for any Federal or State court to hold that a pation can participate in legislating for the people of the United States ****he treatymaking clauses of the Constitution." 23 HOUSE OF DELEGATES ENDORSES AMENDMENT the opinion of the American Bar Association that such a constitutional is necessary, the house of delegates of the association, on February 26, Lended to the Congress of the United States for consideration the Constitutional amendment limiting the treatymaking power: ***Son of a treaty which conflicts with any provision of this Constitution be of any force or effect. A treaty shall become effective as internal United States only through legislation by Congress which it could enact de gated powers in the absence of such treaty." &o was taken on recommendation of the American Bar Association's e on peace and law through United Nations, which had the subject under several years." This recommendation was opposed by the council of 99 24 Pan American Airways (55 N. Y. S. 2d 317 (1945)), affirmed. 295 N. Y. 852, 23: Lee v. Pan American Airways (89 N. Y. S. 2d 888, 300 N. Y. 761, 89 N. E. certiorari denied 339 U. S. 920. Cuty Press, American Falls, Idaho, June 19, 1952, p. 4; reprinted in Con- California. Supreme Court of California. April 17, 1952, 38 Adv. Cal. Rep. 4. B. A. J., 559, July 1952. ly reported that the United Nations and its affiliated organizations have "In the works," in the social, economic, and political field. A Finch. The Treaty-Clause Amendment; The Case for the Association 38 7470, June 1952). ings of House of Delegates (38 A. B. A. J. 435, May 1952). of Committee on Peace and Law, dated February 1, 1952 (3d printing, September 1, 1951 (2d printing, October 1, 1951); September 1, 1950; 1, 1948. 172-53 the association's section of international and comparative law, whose view th such an amendment was unnecessary was overwhelmingly voted down by t house of delegates, which is the official and final voice of the American B Association. The published studies made by the committee on peace and law over the pa several years, and a series of recent articles 26 on the treaty power, have rais intense interest in many quarters in a constitutional amendment. The editor a leading newspaper received the 1951 Pulitzer prize for a series of editoria on government by treaty; 27 he concluded with a plea for an amendment to t Constitution to prevent the setting aside of domestic law through the exercise the treatymaking power. Three State legislatures in 1951 and 1952 recommend to Congress adoption of such a constitutional amendment.28 In 1951 Members Congress introduced at least four proposals to amend the Constitution in th respect. In a book published in 1952 a distinguished United States circuit jud has urged a constitutional amendment with respect to the treaty power.3 30 On February 7, 1952, just prior to announcement and approval of the America Bar Association text on February 26, Senator John W. Bricker of Ohio, wit cosponsorship of 56 Senators from both political parties (a group since enlarged introduced Senate Joint Reesolution 130, proposing a constitutional amendmen regulatiing both the treaty power and the power of the President to make e ecutive agreements. At the time of its introduction the Ohio Senator gave pr mary credit to the American Bar Association for its work in this field." Sena Joint Resolution 130 was proposed by Senator Bricker as a draft for study an consideration in order to bring these important constitutional issues to a hea The identical amendment was introduced in the House of Representatives o February 11, 1952, by Congressman Smith of Wisconsin as House Joint Resolutio 876. At a hearing on what is now popularly known as the Bricker Amendment, h fore a subcommittee of the Judiciary Committee of the United States Senat held in May and June, 1952, the issue of making an amendment to the Constit tution covering the power to make treaties and executive agreements was full discussed, and opposing views were developed at length. 34 33 As a result of these hearings and other studies, and of published art cles which have recently appeared, the pros and cons of these questions paramount public importance have emerged quite clearly. REPORT OF COMMITTEE LISTS PURPOSES OF AMENDMENT The committee on peace and law of the American Bar Association, in its re port recommending to the house of delegates the adoption of the constitutiona Holman, Treaty Law Making: A Blank Check for Writing a New Constitution (3 A. B. A. J. 707 (1950); Ober, The Treaty-Making and Amending Powers: Do They Prote Our Fundamental Rights? (36 A. B. Å. J. 715 (1950)); Deutsch, The Treaty-Makin Clause: A Decision for the American People (37 A. B. A. J. 659 (1951)); Fleming. Dange to America: The Draft Covenant on Human Rights (37 A. B. A. J. 739, 816 (1951)). William Fitzpatrick, in New Orleans States. December 11-18, 1950. The Pulitze prise award was made in May 1951; see New York Times, May 8, 1951. **State legislatures were those of Colorado (97 Cong. Rec. 353); California (97 Con Ree 6186); Georgia (93 Cong. Rec. 1076). Nee Rep rt of Committee on Peace and Law, September 1, 1951 (October 1, 1951, prin Ing), pp. df 62. **See footnote 10. Se * For text of S. J. Res. 130, See Congressional Record, February 7. 1952, p. 921. statements of Senator Bricker and various Senators, Congressional Record, February 1952, pp. 920 928, Among other things Senator Bricker said: "Before explaining th Joint resolution, section by section, I should like to pay tribute to the magnificant wor of the American Bar Association and its committee on peace and law through Unite Nations in alerting the American people to the dangers inherent in the treaty-makin power, I desire to pay a special tribute to the association's distinguished past president Mr. Frank R. Holman, of Seattle, Wash., for his pioneer work in this field. I hope tha the American Bar Association's careful study of this subject over the past 4 years wil result shortly in a proposal to amend the Constitution designed to accomplish the sam objective as the resolution just introduced," Senators Patrick A. McCarran, Nevada: Herbert R. O'Conor, Maryland: Willis Smith North Carolina: Homer Ferguson, Michigan: Robert C. Hendrickson, New Jersey. The proceedings of these hearings are understood to be in process of being printed No. committee report is expected until the next session of Congress. 1952. Report of the Association of the Bar of the City of New York on S. J. Res. 130. May Arthur E. Sutherland, Jr. Restricting the Treaty Power. 65 Harv. L. Rev. 1305 (Jun 1952): George A. Finch, The Treaty Clause Amendment: The Case for the Association 38A. B. A. J. 467, June 1952: Zachariah Chafee, Jr.. Stop Being Terrified of Treaties Stop Being Scared of the Constitution, beginning at p. 731 of this issue. a Report of committee on peace and law, February 1, 1952 (third printing, May 1 1952) ent regulating the treaty-power (as noted above, the house of delegates The recommendation) stated that, without affecting the present method dential negotiation and Senate ratification of treaties, the following pur** are intended to be achieved by the proposal: it is intended to remove any possible doubt that a treaty must be consistent the Constitution and not in conflict with it. : The proposed amendment will prevent a treaty from becoming internal the United States by force of its self-executing terms. It will make Dates non-self-executing so far as domestic law is concerned until Congress 123s bringing the position of the United States into harmony with that of •reat majority of nations. The text of the proposed amendment makes it clear that in legislating in set to treaties, Congress shall have no power which it does not have under 2 Costitution, apart from its power to carry treaties into effect under the rary and proper clause" of the Constitution." In other words, under the d amendment, Congress, in implementing a treaty, will have to legislate lance with its existing delegated powers, without enlargement of those * from the treaty itself. proposal will make it certain that the limitations on Congress, as such, rst amendment that "Congress shall make no law" cannot be escaped by the treaty making power under the claim that the President and Senate arate agency for treatymaking and are not subject to constitutional 13 as on Congress." 30 Cheese for the amendment proposed by the American Bar Association has: re been strongly developed, but scattered objections continue to persist. ere critics of any limitation on the present treaty power make a number arest elaims. 17 49 asserted that the first sentence of the proposed amendment is "unobhe in itself, but unnecessary." As pointed out above, there is at the "meat time surrounding this subject a very large doubt, the removal of which persons can and should approve. AMENDMENT WOULD CONTRIBUTE MUCH TO CLARITY s asserted that the most far-reaching part of the proposal provides that y shail become effective as internal law in the United States only through on by Congress." It is said that wiping out our existing constitutional e by which most American treaties are self-executing, would be bad." at is that making all treaties non-self-executing in in the domestic area Les acts, will contribute much to clarity, will let the several States of ed States know promptly where they stand (which is not now possible er years of litigation), will put us on a parity with other nations insofar Eternal effect of a treaty is concerned, and will put the world on notice itations on our treaty-making power."2 -leading countries of the world, treaties are not enforceable in the courts sje law in the absence of implementing legislation. No good reason L why the United States should be in a disadvantageous position in that 42 Tim 1 see 10, clause 18; see Missouri v. Holland (252 U. S. 416, 432). *** of committee on peace and law, September 1, 1950, pp. 40-41. While there - which assume that the first amendment applies, for example, to judicial roceedings (Toledo Newspaper Co. v. U. S. (247 U. S. 402, 419-420)) and to the partment (Joint Anti-Fascist Refugee Committee v. Clark (177 F. 2d 79, 87)), trind claims made for the treaty power leave the question in doubt. In Zorach -am, decided April 28, 1952, 72 S. Ct. 679, Mr. Justice Douglas, speaking for the of the Court, said: * It [the first amendment] studiously defines the the specific ways. Moreover, Missouri v. Holland shows that, contrary c's opinion (see main text following footnote 8), the President and Senate, the treaty making agency, can do things that Congress cannot do. Finch, sopra. footnote 23; report of the committee on peace and law, February 1, f: 1. 1952. printing). ang Chafee. Jr., Harvard Law School Record, February 21, 1952. Wher or not and to what extent a treaty is self-executing is today a matter See Chief Justice Marshall's decisions in Foster v. Neilson (2 Pet. 253); Pirckeman (7 Pet. 51), relating to the same treaty. Today leading experts disarts. 55 and 56 of the United Nation's Charter are or are not self37 A. B. A. J. 741 (1951). See also the conflicting views in the several ags (footnote 19) and the recent Idaho decision (footnote 18). w's Digest 37; 5 id. 154, et seq. The proposal will avoid the presently tion where treaties may be binding as domestic law in the United States e in our courts, although not in the courts of the other contracting nation 1s the necessary and enabling legislation. This defect in our treaty law has out by Judge Manley O. Hudson in 28 American Journal of International It is believed that the State Department, as well as the Senate, will be great aided in the avoidance of inadvertences or doubtful provisions and in obviatin the necessity of trying to solve in advance difficult questions of the self-executi character of treaty clauses, or the difficulty of obtaining satisfactory Federa State clauses in treaties, if the proposed provision is adopted making all treati non-self-executing until Congress acts by separate implementing legislation. The argument that our situation is different because ours is a Federal sta is untenable. The Judicial Committee of the Privy Council in 1937 disposed this contention in Canada v. Ontario by holding that when a treaty deals wit provincial classes of subjects, they must be dealt with by the totality of power Dominion, and Provincial Legislatures together; in other words, by cooperatio between the Dominion and the several provinces. While two or three Canadia lawyers have expresed regret over the effort necessary to procure such cooper: tion, this is not a sound argument in support of having the Central Governmer override State laws in areas reserved to the Canadian Provinces, or in th United States reserved to the several States. It is also earnestly claimed by critics of the American Bar Association proposal that the Senate of the United States is a sufficient guardian of America rights without any constitutional amendment. This, for instance, is the pos tion of the Association of the Bar of the City of New York," which, in deemin an amendment unnecessary, stands alone among the numerous bar association that so far have considered the matter. These New York lawyers approve th principle that a treaty should not amend or abridge the Constitution of th United States, but they are unwilling to incorporate this safeguard into a cor stitutional amendment. They approve the idea that a treaty should not generall make domestic law for the people of the United States; and if a treaty does s that then Congress may pass an act nullifying or superseding such a treaty but they are unwilling to give the American people the safeguard, in the firs instance, of having a provision in the Constitution that will protect America rights against such treaties, and make it unnecessary to engage in the dangerou practice of repudiating them. In other words, the report of the Association o the Bar of the City of New York advocates that the American people make th oft-repeated mistake of waiting until the horse is stolen before taking any step "to lock the barn." One might as well say that we must first let an evil happe before we correct it, or that we should first have war before we prepare for it The founding fathers who insisted on the Bill of Rights as a condition of ratifyin the Constitution were preventing not those things that had happened, but thos that might happen under the new Constitution. Who is so bold as to say tha their foresight was an unwise restraint on government? The fact that some 60 Senators themselves proposed consideration of a con stitutional amendment affecting the Senate's powers in the treaty field, goes fa toward meeting the argument that the Senate is a completely satisfacory contro By way of example, on January 29, 1952, the Senate advised and consented t the protocol for the admission of Greece and Turkey to the North Atlantic Treat with only six Senators on the floor. True, the protocol was later recalled an discussed at length on February 6 and favorable action again taken on Februar 7 with a quorum present, but the episode considerably weakens the contentio made.15 45 Attention has been called above to the Warsaw Convention" with its hopelessl inadequate "fine print" limitation of liability in the case of aircraft disasters which manifestly escaped the attention of members of the Senate. Under international law it is not necessary that treaties, to be enforceable a international agreements, be effective as internal law. International law is no concerned with the domestic effect of treaties. Mr. Justice Curtis said a centur ago: "If the people of the United States were to repeal so much of their Constitution as makes treaties their municipal law, no foreign sovereign with whom a treat 43 Law Reports, Appeal Cases (1937), pp. 326, 348, 353–354. 44 See footnote 34. It will be noted, too, that the report of the Association of the Ba was written prior to Chief Justice Vinson's dissent in the Steel Seizure cases. 45 The Washington Star for June 14, 1952, reported that two consular conventions an a treaty protocol were approved with two Senators present. Says the Star: "Senato Sparkman, Democrat, of Alabama, presided over a two-member Senate last night, calle up two consular conventions and a treaty protocol, cast the only vote for them, and rule that they had been approved by a two-thirds vote. The only other member in the Senat Chamber was Senator Thye, Republican, of Minnesota, who watched the proceedings with a grin but did not vote. He told the reporters later, 'I did not object.'' 40 See footnote 17. Les could justly complain, for it is not a matter with which he has any asserted that the proposed amendment would limit the Congress in im2 treaties to its delegated powers in the absence of such treaties, and Ts would unreasonably limit the Federal Government in the international I' has already been ably pointed out that by virtue of its power to regulate Commerce, to define and punish offenses against the law of nations, to ~ war, etc., the Congress now has delegated power to legislate with respect the important subjects in the treaty field.** AMENDMENT WOULD NOT UNDULY LIMIT TREATY POWER he noted particularly that the American Bar Association proposal does Tent the President and Senate from making a treaty on any subject ver; but it prevents the treaty from becoming effective as internal law United States except to the extent that Congress legislates within its related powers in the absence of such treaty. It may be that limiting Conto implementing treaties within the field of its delegated powers, will e some areas in which treaties now automatically become internal law - the "supreme law clause"; but this will merely require, as pointed out -"- Privy Council in Canada v. Ontario, supra, that in the case of the United order to become internal law, they must be dealt with by cooperation ** ---n Congress and the State legislatures. - proposed amendment is not intended to prevent the proper exercise of the mevmasing power; and it has been heretofore demonstrated that Congress At has delegated power to enact legislation to make effective as internal the United States treaties on the important subjects of external relations * 2 respect to which the Federal Government is vested with power to act. proposed amendment is adopted, the Congress, and not the treaty-making **-* will determine whether the terms of the proposed treaty should be bindthe States without their consent in areas in which Congress had delegated n the absence of any treaty. In other words, it will be impossible to ze the congressional power through mere ratification of the treaty, or to • State power by the mere ratification of the treaty. The balance between and Federal power would then be subject to change only by the regular of constitutional amendment, or such changes as may come about by interpretation of the line between Federal and State powers. e proposed amendment should pass, acts of Congress initially unconstituwad not be rendered constitutional when reenacted pursuant to a subTreaty; in other words, Missouri v. Holland would not be repeated. -a and law originally constitutional under both the Federal and State Barters would not be rendered unconstitutional by the United Nations in other words, Fujii v. California in the lower appellate court, and the * Labo case would not be duplicated. As the Constitution is now construed, whatever may be the impact of treaties * Federal Bill of Rights, it cannot be contended that treaties will not over* State bills of rights, by which we also set great store. Americans, it is me will never be satisfied with the suggestion sometimes made of the bess of the possibility of ratification of a treaty abridging liberties safeder these bills of rights. mers of the association's amendment have been challenged to point to fed treaty raising the questions that show the need for a constitutional at on the treaty-making power. The only treaty which has actually died is the United Nations Charter itself, which has undoubtedly under v. Holland, already conferred on Congress the unlimited power to ut by legislation treaties on all matters, including individual rights, bt that instrument. roop which objects strenuously to a constitutional amendment to limit - aking power has strongly advocated for opening and signature, and on by the United States, of the Convention on Gathering and InternaTrar scission of News and Right of Correction, which it will be recalled, peacetime censorship and many other restrictions in conflict with * concepts." ▼Morton ((1855) 2 Curtis 454); affirmed by Supreme Court, 2 Black 481; f Committee on Peace and Law, February 1, 1952 (third printing, May 1, ¡ 22 to 25. |