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The CHAIRMAN. You certainly have done a masterful job.
Senator BRICKER. I want to say that all of these presentations have been most scholarly and most objectively given.
The CHAIRMAN. Have you any questions, Senator Smith ?
The CHAIRMAN. Dr. Finch, do you plan to stay here overnight, oj me were you going home?
119. Senator SMITH. He lives here.
. 7 : The CHAIRMAN. Do you have any objection to testifying tomorrow instead of tonight, or would you rather testify this afternoon?
Senator SMITH. I think, Mr. Chairman, if I understood correctly. he was going to be the cleanup man after the others had testified in opposition. He lives in Washington and he can come any time you call him.
The CHAIRMAN. You did not plan to testify today?
Mr. SCHWEPPE. If I may speak, that is correct. On behalf of the committee on peace and law, we had the arrangement last year at leg the subcommittee hearing that inasmuch as the hearing was not closed but other memoranda came in and other speakers came later, that George Finch, because he lives in Washington, could attend the hearings and then be sort of a cleanup person for our position after hearing Terr the other statements. It worked exceedingly well the last time and multe will give you a well rounded record by a person who is as well informed as George Finch is, one of the best informed men in the United States bien
The CHAIRMAN. There is certainly no objection to that.
Senator SMITH. There might be this advantage too, that I was thinking about: When we get down to talking about language, Senator Bricker suggested there was no particular pride of authorship of the particular language, and Mr. Finch, by reason of his peculiar qualifications, could be of immense assistance to this committee in any consideration of rephrasing that the committee might think necessary or advisable.
Mr. SMITHEY. Mr. Schweppe, as chairman of the committee I can would like to address this to you: Do you think that you could, now that the American Bar group has concluded except for Dr. Finch, who is going to be the cleanup man, submit to the subcommittee a memorandum showing the effect of your amendment on some treaties zijn which have been approved by the Senate in the past, and which it would have prevented and which it would have allowed? I think that would help a great deal and would complete the record.
Mr. SCHWEPPE. We would be glad to do that. We expect to be here are through Friday, and we are going to work with Senator Bricker on Friday going over the matter of text. We will carry out your request.
Senator BRICKER. I have one request, and that is I want to call attention to the fact that there have been several articles in the American Bar Journal that have been most helpful to all of us by Mr. Holman and Mr. Finch, and Mr. Deutsch had one a couple of me months ago, I believe. That was the last one.
Mr. HOLMAN. May I make this inquiry: You have probably heard from us all that you care to hear, but we are going to the midyear meeting of the American Bar beginning Sunday and the house of
a bar Tatjes
santes Monday and Tuesday, and if you are going to have hearings -1: Wednesday in which some of these prominent people like Mr. Cassare going to be present, Mr. Schweppe and I would be glad to bruck here and be present on Wednesday so that we might ask a
on or something of that kind. Would that be helpful? I CHAIRMAN. We have not had word from Mr. Davis. We sent
a telegram this afternoon to find when he would be available. 1 sou know, he is quite an elderly man, and we want to make it at in lost convenient to Mr. Davis. Mr. Smithey, suppose you keep track of where Mr. Holman is
to be, and wire him as soon as we have notification from Mr.
Mr. HOLMAX. Thank you.
Mr. H. LYAN. We would very much.
varre in the Christian Science Monitor. If I might say so, the Vitor was, in the beginning, about a year ago, not too favorable
Fring much publicity to this matter, but they got out this study, Siit shows the pros and cons, and the simple language is very ex
ht, and I would like to introduce it for the record.
[From the Christian Science Monitor, Boston, January 26, 1953]
PRIMER ON THE TREATY DEBATE: Is THERE A TROJAN HORSE?
to involve Congress and the Nation. B; Seal Stanford, Staff Correspondent of the Christian Science Monitor In the American Constitution's treatymaking clauses need to be revised ? 2 question of amending the Constitution can well become one of the most - and controversial issues of the coming months.
? Because there are many citizens throughout the country, and many usmen in Washington, who feel that the Nation's sovereignty can be - bed or even destroyed by treaty or executive agreement.
e same persons and groups believe that a definite prohibition must be put ene ose of international treaties or agreements that may invade the field domestic legislation.
Bytt that a treaty might give the Federal Government power it does not it under the Constitution or that something might be done by treaty affecting - deal rights that could not be done by Congress, stems from legal history.
Tuses are of particular interest in tracing the emergence of this problem: 1-tory-birds case of more than a quarter of a century ago; the recent Fanese, involving California's alien-land law. .: Se mizTatory-birds case, a 1913 statute for protecting migratory birds was
Deostitutional in two lower-court decisions. But in 1916 the United ** concluded a convention on the subject with Canada. To carry out the **Dents of the convention, Congress 2 years later enacted legislation sub
1.5 the same as that enacted in 1913 and held unconstitutional, and the de Court in 1920 sustained the new law.
FUJII CASE CITED sued from this case that Congress may derive from a treaty, powers in dot possess under the Constitution—thus letting a treaty authorize what vostitution forbids.
On the other hand, it is argued, as did Justice Oliver Wendell Holmes of th. Supreme Court, that “there may be matters of the sharpest exigency for th national well-being that an act of Congress could not deal with, but that a treat followed by such an act could; and it is not lightly to be assumed that, in matter requiring national action, a power which must belong to and somewhere resid in everv civilized government is not to be found."
The Fujii case involved a Japanese alien, Sei Fujii, who bought a piece c property in California in 1948, contrary to California's alien land law. Whe the purchase was voided, Mr. Fujii filed suit questioning the constitutionalit of the statute.
He lost his case in the Superior Court of Los Angeles County, but won it in th district court of appeals—not on the point that the statute ran afoul of th equal-protection clause of the 14th amendment, but that the land law contravene the human-rights provisions of the Charter of the United Nations.
The case was then carried to the Supreme Court of California, which last sprin upheld the court of appeals ruling, but reversed the reason for that ruling Whereas the lower court had not questioned the constitutionality of the alie land law, but ruled for Mr. Fujii because of the U. N. Charter provisions, th high court ruled 4 to 3 that the land law was unconstitutional, but threw ou unanimously the contention that the U. N. Charter provisions supersede domestic legislation.
But the court did hold that “the Charter represents a moral commitmen of foremost importance and we (the court) must not permit the spirit of ou pledge to be compromised or disparaged in either our domestic or foreign affairs. This type of thinking is called by proponents of an amendment "a danger signal, evidence that treaties affect judicial thinking.
This case has caused those pressing for a tightening of the treaty-making machinery to redouble their effort to get a limiting constitutional amendmen approved.
LEGISLATIVE REVIEW They recognize that the Supreme Court of California made it clear that it dic not hold that the U. N. Charter was a self-executing document. But they ar disturbed that a lower court did, and that there are those on the bench whe would, if properly placed, reverse such a ruling.
They, therefore, demand that this troublesome question be resolved by a con stitutional amendment making treaties automatically non-self-executing—that is, subject to thorough legislative review and approval by both Houses of Congress,
Those ardent advocates of an amendment to keep treaties from invading the field of domestic legislation point more recently to the steel seizure case. There Chief Justice Fred M. Vinson, dissenting (and supported by two other justices) :* argued that the U. N. Charter and the North Atlantic Treaty justified the Presi. 27 dent's action.
These treaties, with their goals of suppression of aggression, were advanced as reason for giving the President the power to seize private property, though lacking statutory authority for such action. Had two additional judges accompted the view of the Chief Justice of the United States, the seizure of the steel mills would have been approved.
DANGER TO SECURITY
This question of the need for a constitutional amendment, redefining and tightening the treatymaking provisions of the Constitution is not just academic.
Advocates of the amendment insist that the danger to the country's security and to the individual's rights is real and present. Some of the 59 Senators who sponsored the so-called Bricker amendment, as they made clear in testimony, were more interested in getting a full public and congressional debate going on the subject than in backing any particular proposal. They wanted facts, light, and then action.
And so, it can be assumed, do the American people—though in what direction is not yet clear,
A vigorous debate on this question is already under way, with three separate proposals before the lawmakers in Washington,
L A Senate joint resolution (for action in both Houses) that would put defi-ntations on the power and authority of the President to enter into execue esteements with other governments.
A Senate joint resolution that would curb both the treatymaking and the streazreements power of the President, and definitely establish the su
y of the Constitution over all pacts entered into with foreign powers. A American Bar Association resolution that would not only establish the
at of the Constitution orer the provisions of any treaty, but require
al treaties before becoming effective as domestic law be implemented by Tussional legislation.
PURPOSE OF PROPOSALS
These proposals to tighten the treaty-making rules have as their purpose to op eiear:
A1 That the Constitution is definitely superior to any provisions of any treaty. B. That the treaty procedure could never be used to put the United States ang world or regional government.
That treaties be nonself-executing—that is, not operative as domestic law * aproved by both Houses of Congress.
That executive agreements must have legislative approval before they
ding on the United States. age of the most inclusive is the Bricker proposal, known as Senate Joint Resolu• 13). It concerns both treaties and executive agreements. Senate Joint ection 122, dealing only with executive agreements, is the most limited in Those who are pressing for a revision of the treaty-making clauses of the Conrtinsist that many treaties, UN ones and others, would or could be used to 25 civil liberties in the United States.
s bold that a constitutional amendment of some kind is necessary to eni gorernment by treaty," to prevent bringing "world government in by Deterk door, to prevent a Trojan horse" maneuver that would whittle away ritts and freedoms of the American citizen.
PROTECTION SEEN There who oppose these efforts to rewrite the treaty-making clauses of the
ration boid that the present system adequately protects the independence Sountry and the people's civil liberties. The amenders" reply that, even though there were no danger signals at the 1 291, the Congress and the Nation would only be exercising the same caution
by the American forefathers in insisting on the first 10 amendments to -1.gitution before actual danger to individual rights arose. Es the opposition then argues that, to make treaty-writing more difficult, or
it the field in which the United States can act in international covenants, 2. embarrass, hamper, nd restrict the country's internațional activities : Sition. 2-5 uy that the proposals to rewrite and restrict the treaty-making powers
Crostitution exhibit a basic mistrust of all three branches of the Govern***; that the fear of bad treaties is no reason to make it next to impossible to ***and treaties; and that the alarm is at root an admission of lack of faith 7-thirds of the Senate, in the executive officers, and in the Supreme Court,
las of whoever they may be.
2x whole question is complicated for various reasons. Recognized legal *7*ins disagree on the basic facts. Court decisions and juridical interpre
** hare sometimes tended to confuse, while aiming to clarify. The language ** is frequently hard for the layman to grasp; but when simplified, either *an or misses the fine legal points involved. Detention that treaties may imperil United States freedom and individual #tems from the fact that article VI of the Constitution states in part:
Constitution, and the Laws of the United Sates shall be made in Pur- thereof; and all Treaties made, or which shall be made, under the
rity of the United States, shall be the supreme Law of the Land; and the *** in every State shall be bound thereby, any Thing in the Constitution or 4. uf any State to the contrary notwithstanding."
Thus, treaties once signed and ratified have equal validity with the Constitu tion and with laws enacted by Congress.
What proponents of a constitutional amendment would do is make it clear tha the Constitution ranks ahead of treaties, also that treaties be required to be acted on by both Houses of Congress before becoming operative as internal law.
This present self-executing feature of treaties in the United States is contrarr to normal international practice. In most other countries, a treaty does no attain full force as domestic law until made effective by legislative act.
The argument of those who want to modify or clarify the Constitution's treaty making clauses goes something like this:
1. Treaties can endanger the Constitution and the Bill of Rights, and then quote no less an authority and able lawyer than incoming Secretary of Stati John Foster Dulles, who has said: "Treaty law can override the Constitution' and "Treaties can cut across the rights given the people by the constitutiona Bill of Rights."
2. The State Department, by asserting in a recent public-affairs booklet tha “there is no longer any real distinction between domestic and foreign affairs,' has raised the specter of treaty concern with purely domestic matters.
3. The U. N.'s activity in the fields of social, economic, and labor welfare, a: well as preparation of treaties on such matters, threatens to put the United States into international agreements on such matters without the country's being fully aware of what is being done.
4. This process of "blank-check” treaty-making is not only a threat to many of the country's basic rights, but is a direct step toward world government.
SYNTHESIS OF ARGUMENTS
A synthesis of their combined arguments follows:
The purpose of these proposals is to remove any possible doubt that a treaty must be consistent with the Constitution and not in conflict with it.
They are intended to give unequivocal constitutional assurance that no pro vision of a treaty which violates the Constitution, or which is inconsistent with the nature of the Government of the United States or of the relation betweer the States and the United States, should be valid.
Since, in the last few years, the courts have overruled or disregarded earlier decisions on the subject, it is appropriate that the question be settled by unequivo cal language for all time that treaty power cannot be used for purposes in con flict with the Constitution.
These proposals will prevent a treaty from becoming internal law in the United States by force of its self-executing terms.
They would make all treaties non-self-executing so far as domestic law is concerned until Congress acts. Thus the question of whether a treaty is self. executing or non-self-executing is removed from the realm of judicial speculation, in and treaties become effective internally exclusively on statutes passed by both Houses of Congress.
This arrangement would make America's situation as to the internal effect of treaties comparable to that of Great Britain and most other countries where treaties, while effective as international agreements, have no effect as internal law of the country unless incorporated into that law by an act of Parliament or other comparable legislative body.
At the time the Constitution was adopted, and until recently, treaties were largely restricted to their traditional field of agreements between sovereign nam tions imposing duties and obligations on the contracting states and not on individual citizens.
So long as they were so restricted, the need for a constitutional limitation on the treaty power was perhaps not so strikingly urgent.
Today, however, treaties are being made and submitted to the Senate for ratification, and others are proposed, which impose criminal and civil liabilities di- c* rectly on individual citizens which affect the rights and impose duties on individual citizens—all in the area heretofore reserved for State legislation.
The time has, therefore, come to put constitutional limitations on the treaty. making power and upon the power of Congress to enact legislation implementing