ago. We must consider what we have become in deciding what that amendment [10th] has reserved."

Actually, the whole question of the power of the courts to declare treaties unconstitutional is shrouded in grave doubt. On the one hand, we have the dicta referred to, on which the Government departments so fondly rely, although some of them have already been contradicted by Missouri v. Holland. On the other hand, we have such cases as Oetjen v. Central Leather Co. (246 U. S. 297, 302), where the Court says that: "The conduct of the foreign relations of our Government is committed by the Constitution to the executive and legislative, the political departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." We also have U. S. v. Curtiss-Wright Corp. (299 U. S. 304, 319), where the Court approved the following language concerning the President: "He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiations may be urged with the greatest prospects of success. For his conduct he is responsible to the Constitution." Then we have the statement of the late Chief Justice Hughes made to the American Society of International Law, 1929, in which he says: "The treaty power is a power that has no explicit limitation attached to it. I should not care to voice my opinion as to an implied limitation of the treaty making power. The Supreme Court has expressed a doubt whether there could be any such. That is, the doubt has been expressed in one of its opinions."

Then comes the unqualified fact that while the Constitution expressly says that a statute must be passed "in pursuance" of the Constitution, nothing is said about treaties except that they must be made under the authority of the United States. (The last paragraph of Marbury v. Madison, in which Chief Justice Marshall upheld the power of the Court to hold an act of Congress unconstitutional, rests on the "in pursuance" phrase.) Mr. Justice Holmes in Missouri v. Holland adverted to this distinction I have mentioned as possibly controlling. It is true that he threw in by way of dicta that there might be some limitations of the treaty power. In any event, it was not necessary to the decision for him to say anything about it. It can be argued with grave conviction, I believe, that since there is no control of the treaty power under the Constitution except that it must be made "under the authority of the United States." that is, by the President, with the advice and consent of the Senate, there is no judicial control whatsoever over the contents of treaties. It certainly would take a complete reversal of the expressions in certain opinions that what is done in the field of foreign relations is "not subject to judicial inquiry or decision" before it could be said with any degree of safety that the Court could actually hold a treaty constitutional. Then add to that the fact that, beginning with the statement of Mr. Justice Chase in Ware v. Hylton ((1796) 3 Dall 199), that he doubted the power of the Court to hold a treaty unconstitutional and ending with the Circuit Court of Appeals for the Ninth Circuit in the United States v. Reed (73 F. (2d) 153), that "it is doubtful if the courts have power to declare the plain terms of a treaty void and unenforceable." One cannot gain much comfort concerning what the Court will do when the question needs to be squarely faced.

In fact, the distinguished committee on amendments to the Federal Constitution of the New York State Bar Association (consisting of the Honorable William D. Mitchell, former Attorney General of the United States, Mr. John W. Davis. Lewis R. Gulick, John J. Mackrell, and Harrison Tweed) expressed in its June 1952 report a genuine fear that the Supreme Court of the United States might sustain the proposed International Covenant on Human Rights which the Secretary of State told us on Monday his administration at least would not approve. That distinguished committee of the New York Bar Association said that "it would place a heavy strain on the Supreme Court to hold that the treaty is invalid." This position of the distinguished New York State Bar Association committee, in our opinion, also constitutes a strong argument in favor of a constitutional amendment.

I shall now comment on some additional features of Mr. Dulles' statement. On page 1 in the third paragraph under the caption, "The Historical Background," there appears the statement that the records of the Constitutional Convention reveal that some of the ideas contained in the resolutions now being considered were advanced and rejected. The distinguished Secretary says: "For instance, Gouverneur Morris made a motion that no treaty should be binding ‘which is not ratified as a law.' This was voted down 8 to 1" (2 Farrand 392).

Just how the statement just quoted can be made with a straight face is not clear, although the Solicitor General of last year, as I recollect, made the same argument. It ought to be obvious to anyone that there is a tremendous difference between a clause which says that no treaty shall be binding which is not ratified as a law and another clause which says a treaty shall be immediately binding as an international obligation under international law from its effective date, but not binding as domestic law until Congress acts.

To Secretary Dulles' statement was appended a mimeographed memorandum entitled "Statement by Department of State on Senate Joint Resolution 1 and Senate Joint Resolution 43," described in the first paragraph as "supplementary to that made orally by Secretary of State Dulles."

The memorandum says at the bottom of page 2 that "An abuse of the treaty power can be forthwith undone by a simple act of Congress." Is it not true that while a treaty can be made by the President with the advice and consent of two-thirds of the Senators present, it would take a two-thirds vote of both Houses to pass a "simple act of Congress," over the veto of a President who negotiated the treaty and was obstinate about its repeal or modification, even though a considerable majority of Congress, but less than two-thirds of both Houses, thought the treaty harmful to American rights?

Might not such a subsequent repeal, with all its attendant publicity, seriously affect our international relations?

On page 3, line 8, of the memo referring to Missouri v. Holland, it is said "From this it has been argued that treaties might override the Constitution." The immediately following language in the memorandum undertakes to prove the contrary.

Is not the statement on page 3, lines 25 and 26, to wit: "The inference sought to be drawn being that a treaty may be supreme over the Constitution," a statement in conflict with Mr. Dulles' publicly expressed view?

In the last paragraph on page 3 it is argued that it would be dangerous to draw an amendment merely declaratory of the judicial expressions, because the court might nevertheless presume that some change was intended.

Obviously, this fear will be rendered baseless by an appropriate committee report of your distinguished committee, which the courts always consult to ascertain your intent.

Moreover what harm can come if merely declaratory or largely declaratory of existing law?

The Revised Statutes of 1873 were declaratory and intended to be so. Many uniform laws that have been enacted throughout the country are largely declaratory.

The work of the American Law Institute in the many fields of law with which that institute has dealt is largely declaratory.

I am sure, as asserted by the Honorable Orrie L. Phillips, chief of the United States Court of Appeals for the Tenth Circuit, a member of our committee, that the courts will have no difficulty in discovering that section 1 of the proposed American Bar Association amendment is intended merely to be declaratory of the ancient dicta of early Supreme Court cases with which we agree, but which we want set up as a positive constitutional limitation, by which courts may thereafter test the validity of treaties.

As regards the question of retroactivity raised on page 4, Mr. Dulles is, I am sure, familiar with the rule that any law is presumed to be prospective unless the contrary clearly appears.

On page 4, lines 17 and 18, the question is raised whether the amendment would invalidate the United Nations Charter provision outlawing an aggressive war. How could the amendment, couched in terms of the Supreme Court dicta on which the Department relies on page 3, invalidate that charter provision any more or less than the dicta themselves, if those dicta express the existing law?

In other words, is that charter provision valid under present Supreme Court expressions?

If so, how could the amendment merely intended to give those dicta positive legal effect bring about any different results?

In any event, if aggressive wars are now bad (and, no doubt, the Crusades and many other wars including some of our own with the Indians and others were, in modern contemplation, aggressive), would not the Court probably uphold a treaty outlawing such bad wars as not in conflict with the Constitution either now under its existing expressions or under the proposed amendment? If there is any constitutional restraint on the treaty power, justiciable in a

court of the United States, I am sure the court would hold, applying settled principles that have been applied by the courts to other constitutional powers, that a treaty outlawing aggressive war is not an unreasonable exercise of the treaty power.

Both of the distinguished Cabinet members take the position that we as yet have no treaties to worry about and that the doubtful ones that are now in the works we need not be afraid of because their respective administrations are not going to submit them for ratification.

I call attention to the United Nations Charter and expressly to articles 55 and 56. The United States is a full party to that charter without any qualification or reservation whatsoever. Under the decision of Chief Justice Marshall in Foster v. Neilson (2 Pet. 253), the pledge contained in section 56 is addressed to the Congress of the United States, and under Missouri v. Holland (252 U. S. 416), Congress now has plenary power to legislate under the treaty, even though in the absence of the treaty, Congress would not have authority to legislate generally in the areas of so-called human rights. The United Nations agencies have divided human rights into civil, political, economic, social, and cultural rights. That covers the whole gamut of human activity. Does the Congress of the United States now have the power under articles 55 and 56 of the United Nations Charter to legislate without limit in every field of human endeavor? That is the logical end of the lovers of Missouri v. Holland: That we now, by virtue of the United Nations Charter, have a Federal Government of unlimited powers.

Hereafter, every time an act of Congress comes before the courts for a test of its validity (and Congress is at no time required to disclose with respect to any statute the source of constitutional power on which Congress relies), the court must first examine the validity of the legislation under the Constitution itself, and failing there to find an adequate basis for the legislation must then examine the statute under the provisions of the United Nations Charter; and if the court finds that the statute falls somewhere within the whole gamut of human activity embraced within articles 55 and 56 of the United Nations Charter, the court must say that under Missouri v. Holland the statute is valid even though in the absence of the charter it would have no constitutional basis.

Thomas Jefferson was not in the Constitutional Convention but he took an active part in the debates for the adoption of the Constitution. Richard Henry Lee and Patrick Henry, of Virginia, contended that the treaty clause as written granted unlimited power to make supreme law of the land by the treaty route and that valuable rights otherwise protected by the Constitution could be lost by the treaty method. Jefferson made the famous statement at the time "if the treaty power is unlimited, we have no Constitution." His own view was that the treaty power could "comprehend only those objectives which are usually regulated by treaties and cannot be otherwise regulated," and he was very certain that treaties could not interfere with the powers and rights reserved to the States and to the people by the 9th and 10th amendments of the Bill of Rights. He said of the treaty power, "It must have meant to except out all those rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way" (Thomas Jefferson, Manual of Parliamentary Practice, first edition, 1801; 6 more editions until his death in 1825).

However, Jefferson's view did not prevail. Missouri v. Holland (252 U. S. 416) rejected the position of Jefferson and others cited in the briefs, and held directly to the contrary, namely, that the treaty power can invade the rights and powers reserved to the States and to the people under the 10th amendment. If an examination is made of the briefs in Missouri v. Holland, even as briefly summarized in the beginning of the opinion in the official edition of the United States Supreme Court Reports, one will note citations indicating that other public men and scholars supported Jefferson's view that at least the Bill of Rights added to the Constitution in 1791 prevented the treaty power from invading the rights and powers reserved to the States and to the people under the 10th amendment. But Holmes construed the treaty clause of the Constitution in the light. as he said, of current conditions and not in the light of "what was said 100 years ago." The point is that under the United Nations Charter we now appear to have by treaty a Federal Government of unlimited powers, the same thing that caused Jefferson to say: "Then we have no Constitution."

Were not the first 10 amendments adopted to the Federal Constitution in 1791 because of fears of how the Constitution might be considered in the absence of those amendments?

I now desire to make several separate comments on the statement of the distinguished Attorney General, which are separate and apart from and in addition to, those which I have made either on the joint position of the Secretary of State and the Attorney General, or the separate position of the Secretary of State.

In our report of February 1, 1952, we made the following statement: "The proposal wil make it inescapably clear that the limitations on "Congress" in the first amendment that "Congress shall make no law" cannot be escaped by use of the treatymaking power under the claim that the President and Senate are a separate agency for treatymaking and are not subject to constitutional limitations on "Congress." (See Report of Committee on Peace and Law, September 1, 1950, pp. 40-41.) Beginning on page 14, the Attorney General makes the argument that this is a problem not to worry about because a number of decisions have been rendered in which "the first amendment has been assumed to apply not only to Congress but to all branches of the Federal Government." This is the same argument made by last year's Solicitor General. The argument is quite unconvincing because in none of the cases cited was the point raised by us squarely involved, and the language of the first amendment, when placed against the constitutional language on the exercise of the treatymaking power, sharply raises the question. I think the Attorney General will agree that the point has never been squarely decided. We believe that the question should be unqualifiedly put at rest in clear, constitutional language. The Supreme Court has said many times that although a question may lurk in the record, if it was not squarely raised and disposed of it cannot be said that the point was determined and the Court must consider the problem directly when it is appropriately raised in a later case. In view of the "new look" doctrine of constitutional construction, a new look might induce the Court at some time to hold that the first amendment did not limit the treatymaking power.

The distinguished Attorney General on page 37 puts a different construction on the dissenting opinion of the Chief Justice and two other judges in the Steel Seizure cases. The Attorney General contends that while the United Nations Charter and the NATO Treaty were mentioned as part of the context in which the seizure question arose, the Chief Justice did not derive his view of the constitutional power of the President to seize the steel plants from these treaties, but that the Chief Justice expressly predicated his opinion upon the proposition that "the President has the duty to execute the foregoing legislative programs." The Attorney General did not notice that the legislative programs to which the Chief Jusice referred he had earlier described as arising in substantial part as implementing legislation under the treaties referred to. The purpose of the seizure of the steel mills was purportedly to further the United Nations "police action" in Korea. Congress passed the Mutual Security Act to carry out the concepts of mutual assistance among the nations for defense. Under the United Nations Charter and also under NATO, the seizure of the steel mills was, therefore, to carry out in part, at least the legislative program of the Mutual Security Act which was passed in implementation of the treaties referred to. The Chief Justice comes out with the conclusion that the President's seizure of the steel mills was justifiable as faithfully executive the legislative program having its origin in these treaties. I respectfully suggest, therefore, that the Attorney General's analysis of what he considers properly inferable will not actually stand up. Two more members of the Court could have made that view the law and I need hardly suggest that a President greedy for such powers (not including the present incumbent, even by the faintest inference) might have the opportunity to reconstitute the Court with men who believe in the expansion of executive power and can find a form of judicial words to sustain it.

While both the Attorney General and the Secretary of State rely on correction of a bad treaty by "a simple subsequent act of Congress," we have pointed out previously that in many circumstances the obtaining of such an act may not be so simple. In any event, we believe the American people are entitled to be protected against such treaties in advance by an appropirate constitutional amendment. In any event their shift of emphasis is worth noting. To repeal a treaty, they asy, requires only a "simple act of Congress," but this "simple act" is much too difficult for them to stomach if made a condition precedent to a treaty's becoming domestic law, as we request.

IV. PROPOSED ATERNATIVE REMEDIES

1. Inclusion of protective clauses in treaties

This suggestion relies on the ability of United States representatives to get Association, June 1952.)

This is reliance for protection on the human factor instead of on law; and such reliance may be misplaced either because of inability to have such a clause inserted or by deliberate design not to include such a clause.

United States representatives have tried for 4 years to get inserted in the draft Covenant on Human Rights a so-called federal-state clause intended to protect our own Federal-State situation. But the efforts have signally failed. In fact, the clause was inadequate to accomplish its purpose. (Report Committee on Peace and Law, American Bar Association, September 1, 1951; Report Committee on Amendments to the Federal Constitution, New York State Bar Association, June 1952.)

Moreover, whether such clauses, either "federal-state" or non-self-executing, are in form to constitute adequate protection is a judicial question which may leave the States in doubt for years. (See pt. III of this report.)

Your committee believes that legal protection should be provided, and that reliance should not be placed in persons but on law.

Mr. John W. Davis, of New York, said in his great argument in the Steel Seizure cases (343 U. S. 579 (June 1952)), quoting Thomas Jefferson:

"In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution."

2. Understandings and reservations

An "understanding" is a clause sometimes appended to a treaty for the purpose of making it clear that the document has been approved on the condition that it, or some portion of it, is to be "understood," i. e., interpreted or construed, in a certain way.

For example, the State Department attached an “understanding” in its letter of transmittal of the Genocide Convention in 1950. An “understanding" generally amounts to a "counteroffer" and requires acceptance by the other contracting party either expressly or by legally binding acquiescence in some form. A "reservation" is a clause sometimes appended to a treaty which states that some portion of the treaty is not acceptable or to be considered binding, and that the treaty is accepted only subject to the "reservation."

For example, the United States Senate attached the so-called Connolly reservation to the Statute of the World Court, to the effect that the United States reserved the right in each case to determine whether a controversy involving it should be submitted to that Court.

A "reservation," since it has the effect of not accepting the treaty, or some of its necessary implications in toto, amounts, in law, to a counteroffer. If a reservation is attached to a treaty, the other contracting party, or parties, are not bound unless the reservation is accepted or in some legal manner acquiesced in.

Under a treaty, Congress, by virtue of article I, section 8, can pass all laws necessary and proper to give effect to, and implement treaties, even though, in the absence of such treaty, Congress would not have power under the Constitution to pass such legislation; neither by reservation nor understanding can this power of Congress be controlled if Congress chooses to exercise it (American Bar Association Journal, September 1952, p. 735).

The foregoing statement represents the agreed views of the American Bar Association's committee on peace and law through United Nations and of that Association's section of international law in joint report. (See Report of Committee on Peace and Law, September 1, 1951, p. 36.)

Thus while reservations or understandings may be attached to a treaty by the Senate or the State Department, they in no way inhibit the power of Congress to ignore the reservations and understandings and to enact legislation under the treaty, binding on the States and the people, which it could not enact in the absence of treaty. In other words, neither a reservation nor understanding affects the power of Congress to set aside State constitutions and laws and existing Federal laws within the purview of the treaty.

Moreover, in the present era of multipartite treaties negotiated between many countries, the attachment of understandings or reservations may seriously complicatet our international relations. It would seem far better to have a constitutional protection that will make such devices generally unnecessary,