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to make a little statecase is som
amendment to protect foregoing
the dangers of “treaty its reasoni
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yment of the United States or were !
el'nited States, shall be valid.
662, 736); The Cherokee To
1. Joy (17 Wall. 211, 243); Dethe
); and see Asakura v. Seattle Foll
s drawn by some persons from tio,
and U.S. v. Curtiss-Wright Corthe
that the treaty power is unlimited tre
stitution, should be unqualifiedly l any doubt on this score be for
Sites v. Pink (315 U. S. 203, 233-4). Tint a treaty or executive agreement
sie United States by force of its selfat should make all treaties non-selfxir is concerned until implementing leg- :)
amendment should remove the doubt heuting or non-self-executing from the
and make the internal effectiveness of Srates depend exclusively on implement
? out in this connection, in almost every Cindexcept the United States, each country me to what extent it wishes to implement à
-lation even though such signatory State 2012?**? et such legislation. (Report, peace and
1950, pp. 9 to 12.) sinthe only important country that faces the
Mercept possibly France and Mexico-that is vinys if I may say so, but France is not a federal
France has no bill of rights like we have, and blitt so I merely point that out. As I say, upon
pop met true exceptions, but when a treaty is rati
ronal process by the President with the consent of in ons automatically becomes a part of the supreme
ne Hences in the United States when an international ir lnited Nations Charter, or the genocide conven
I on human rights, is ratified as a treaty, it may livar, ***onlinance, every county ordinance, every State
spiestitution, and every Federal statute on the same sit the logical result of the Holmes doctrine in MisV Holland, it may enlarge and amend the Constitution
The amendment should limit the language of the decision of V-uri against Holland, supra, by making it clear that in legislating
Treppet of treaties, Congress shall have no power which it does not .mais have under the Constitution, apart from its power to carry nale into effect under the “necessary and proper clause" of the ..wilution art. I, sec. 8). The amendment should take care of - toread language in U. S. v. Curtiss-Wright Corporation, supra
U.S.:30+), where the language of the Court espouses the theory firpatricted inherent Federal power in the field of international
It alls. • The amendment should make it inescapably clear that the limioon ('ongress in the first amendment that "Congress shall make
law" cannot be escaped by use of the treatymaking power or by In'utive agreement under the claim that the President and Senate pa separate agency for treatymaking and are not subject to contritional limitations on Congress. (See report of committee on map and law, September 1, 1950, pp. 40-41.) Some critics say that samendment accomplishing the foregoing purposes and objectives Tuled prevent the proper exercise of the treatymaking power in the
ratational field-that such an amendment would abridge the power fie United States to make treaties of commerce, of navigation and friendship and the power to make many other traditional types of
This argument is fully disposed of in the February 1952 7 of the committee on peace and law, pages 14 to 17, inclusive,
the matter has been dealt with at greater length in an article ''raring in the June 1952 issue of the American Bar Association
mulbs Dr. George A. Finch, an eminent authority on treaties - the pilitor of the American Journal of International Law. Steral different drafts of amendments have been proposed but for
citr and directness of language I believe this text now recomMjud by the American Bar Association's committee on peace and : * inat meets the objective of protecting American rights and the pian form of government. An increasing number of lay orszations have approved the proposal for such a constitutional -ment. These now include such organizations as the American
on the Veterans of Foreign Wars, the Marine Corps League of L-1. Service clubs, and many other organizations. And I would - to introduce the list because it is rather formidable. I would sv to now introduce a list of organizations that officially support the titutional amendment. The CHAIRMAN. Very well.
The list referred to is as follows:) **** 14TIONS AND ORGANIZATIONS OFFICIALLY SUPPORTING THE PROPOSAL FOR A 1551TTIONAL AMENDMENT ON TREATIES AND EXECUTIVE AGREEMENTS Werican Bar Association: The following State Bar associations have
als adopted resolutions favoring a constitutional amendment on treaty *** Arizona, Arkansas, ('olorado, Florida, Indiana, Iowa, Louisiana, Mis
pooi. Montana, North Dakota, Pennsylvania, South Dakota, Tennessee, * Washington
ül A viation of Attorneys General-This is highly significant because this 3.4 kiation represents the chiefs of the legal departments of each of the 48 Swing State legislatures have passed resolutions favoring a constitutional Tendment on treaty law : California, Colorado, Georgia, Wyoming.
et Lockerence on National Defense, representing
Priset the United States of America
Vw England Women
Star Legion, Inc.
ilzeri National Society of New England Women
* mr lothers
Prense ('ommittee of Philadelphia
*NURER OF COMMERCE OF THE UNITED STATES
*w you see a formal resolution for a constitutional amendment, Viene of the United States first through a special committee
Not the subject, then through its standing committee on policy, 'Air of delegates at its annual meeting in April of last year
Warmerstimable language adopted the following policy with
Drinis or making international agreements and with respect to than 42% gestie law of such agreements :
V Hon vip a treaty or of an executive agreement that alters or Did institution of the l’nited States shall become effective unless such i'it :**** pin change is embodied in a constitutional amendment adopted and titten in the manner provided in that Constitution for its amendment.
E No provision of a treaty or of an executive agreement that alters or abridges ***.ts protected by the laws of the United States or the Constitution or laws :itral States shall become effective unless and then only to the extent
Tess shall so provide.
NATIONAL ASSOCIATION OF MANUFACTURERS Dr National Association of Manufacturers has officially adopted a declaration ?>*-5 similar to that adopted by the United States Chamber of Commerce. Vr. HLMAN. This movement, if I may say so, is now a matter of
ut not merely to lawyers but to great organizations like the
mrkan Legion, the Veterans of Foreign Wars, the Marine Corps wire of America, service clubs and many organizations as shown ce list introduced. Irie is a widespread national interest in the matter, calling for
action by the Congress. Ilelieve the foregoing text is best because in simple and under...dable language, without unduly restricting treaty-making power, meets the following minimum requirements to protect American
*5 State and individual) against treaties and executive agree--**for it clearly provides
1 That no provision of a treaty which conflicts with a provision the Constitution of the United States is valid.
That no treaty is effective until implemented by legislation. Ti is merely puts the United States on a par with other nations as the initial effect of a treaty.) 3. That no legislation shall be valid if contrary to or in excess of powers delegated to the Congress by the Constitution.
That executive agreements shall be subject to regulation by the Ingress and to the limitations imposed on treaties.
la my opinion, a constitutional amendment along the foregoing ses is necessary to protect American rights and to preserve the Aerican form of government. I believe it will have the support of rre majority of Americans and in due course will receive the
apaof the necessary three-fourths of the States. Now, I prepared, Senator Bricker, a comment on your text. I Intated that early this morning. I would like to put that in and
comment on it at the moment. I have indicated the broad line at I think the amendment should cover. This is a separate memondam in re Senate Joint Resolution 1. I will first quote you Senate Hot Resolution 1 so it is before you conveniently, so you don't have
bure it on a separate sheet: SECTION 1. A provision of a treaty which denies or abridges any right enumnd in this Constitution shall not be of any force or effect.
SET. 2. No treaty shall authorize or permit any foreign power or any *at.onal organization to supervise, control, or adjudicate rights of citizens
se United States within the United States enumerated in this Constitution *.5oher matter essentially within the domestic jurisdiction of the United
3. A treaty shall become effective as internal law in the United 2- only through the enactment of appropriate legislation by the Congress.
. 4. All executive or other agreements between the President and any matinnal organization, foreign power, or official thereof, shall be made only "e banner and to the extent to be prescribed by law. Such agreements be subject to the limitations imposed on treaties, or the making of treaties,
SEO. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
COMMENTS ON SECTION 1
In my opinion, section 1, in its phrasing, falls short of protecting American rights (State and individual) against the dangers of “treaty law” in merely providing that
À provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect.
The language is insufficient to act as a protective constitutional shield against the invasion of many basic rights not enumerated in the Constitution. The Constitution protects many rights not enumerated in that instrument. The ninth amendment, for example, provides that, the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. On this subject and others the Constitution itself protects nonenumerated rights. Also, the 10th amendment protects nonenumerated rights by providing that, the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. One such basic right is the right to determine its law of property. For example, some States have community property, others different laws with respect to the acquisition, ownership, and enjoyment of property, which are not enumerated in the Constitution.
The phrasing, in my judgment, fails to take into account the constitutional concepts contained in both the 9th and 10th amendments. The American Bar Association draft does this and therefore would seem preferable. It provides “a provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect.” This simple provision adequately takes care of those very important rights and powers covered by the 9th and 10th amend ments.
Even many of those who are pronounced opponents of any “treaty law” amendment have not quarreled with the language of the first sentence of the American Bar proposal. For the most part our critics have merely said that a constitutional amendment to that particular effect is unnecessary because already any provision of a treaty which actually conflicted with the Constitution would be held invalid by the courts—which we of course think is at least sufficiently doubtfulthat the only way to be sure of it, is to have a protective constitutional amendment that will make it sure for all time.
Senator BRICKER. I might say in connection with that that we want a first sentence all-inclusive of all rights observed by American people, whether observed or granted or what not.
Mr. HOLMAN. Don't misunderstand me. We agree with your objective and you agree with ours. I think it would be helpful.
Senator BRICKER. I think it is.
Mr. HOLMAN. That instead of having loose talk by we people in the American Bar, if I just put it down. This is not the American Bar. This is just Frank Holman.