The CHAIRMAN. You certainly have done a masterful job. Mr. HOLMAN. Thank you so much, Senator; that is very kind of you Senator BRICKER. I want to say that all of these presentations hav 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, o were you going home? Senator SMITH. He lives here. 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 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 hear ings and then be sort of a cleanup person for our position after hearing the other statements. It worked exceedingly well the last time and 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 on that. 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 nec essary or advisable. Mr. SMITHEY. Mr. Schweppe, as chairman of the committee I 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 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 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 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 Hates Monday and Tuesday, and if you are going to have hearings -:Wednesday in which some of these prominent people like Mr. s are going to be present, Mr. Schweppe and I would be glad to back here and be present on Wednesday so that we might ask a tion or something of that kind. Would that be helpful? The CHAIRMAN. We have not had word from Mr. Davis. We sent a telegram this afternoon to find when he would be available. As you know, he is quite an elderly man, and we want to make it at the most convenient to Mr. Davis. Mr. Smithey, suppose you keep track of where Mr. Holman is g to be, and wire him as soon as we have notification from Mr. Mr. HOLMAN. Thank you. The CHAIRMAN. Would you also like to be here when the Secretary Mr. HOLMAN. We would very much. I think the best lay study that has been made of this whole matter The article referred to follows:) [From the Christian Science Monitor, Boston, January 26, 1953] Is there a Trojan horse in American constitutional law by which By Neal Stanford, Staff Correspondent of the Christian Science Monitor the American Constitution's treatymaking clauses need to be revised? This question of amending the Constitution can well become one of the most d and controversial issues of the coming months. Why? Because there are many citizens throughout the country, and many smen in Washington, who feel that the Nation's sovereignty can be rained or even destroyed by treaty or executive agreement. e same persons and groups believe that a definite prohibition must be put a the use of international treaties or agreements that may invade the field mestic legislation. Beef that a treaty might give the Federal Government power it does not FUJII CASE CITED s argued from this case that Congress may derive from a treaty, powers not possess under the Constitution-thus letting a treaty authorize what Constitution forbids. MINAN 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 t 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 every civilized government is not to be found." The Fujii case involved a Japanese alien, Sei Fujii, who bought a piece 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. REASON REVERSED 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-makin 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 di 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 wh 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-tha is, subject to thorough legislative review and approval by both Houses o Congress. Those ardent advocates of an amendment to keep treaties from invading th fleld 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 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 ac cepted the view of the Chief Justice of the United States, the seizure of the stee 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. 1 A Senate joint resolution (for action in both Houses) that would put defimitations on the power and authority of the President to enter into executre acreements with other governments. A Senate joint resolution that would curb both the treatymaking and the tive-agreements power of the President, and definitely establish the suacy of the Constitution over all pacts entered into with foreign powers. 1 An American Bar Association resolution that would not only establish the remacy of the Constitution over the provisions of any treaty, but require all treaties before becoming effective as domestic law be implemented by *ngressional legislation. PURPOSE OF PROPOSALS These proposals to tighten the treaty-making rules have as their purpose to ake clear: A 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 any world or regional government. C That treaties be nonself-executing—that is, not operative as domestic law approved by both Houses of Congress. That executive agreements must have legislative approval before they ☛ bending on the United States. ume of the most inclusive is the Bricker proposal, known as Senate Joint Resolu:: 150. It concerns both treaties and executive agreements. Senate Joint Leviation 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 Contion insist that many treaties, UN ones and others, would or could be used to 27 y divil liberties in the United States. They hold that a constitutional amendment of some kind is necessary to ent "government by treaty," to prevent bringing "world government in by de hark door, to prevent a Trojan horse" maneuver that would whittle away nts and freedoms of the American citizen. PROTECTION SEEN Those who oppose these efforts to rewrite the treaty-making clauses of the Gestation hold that the present system adequately protects the independence fe country and the people's civil liberties. The "amenders” reply that, even though there were no danger signals at the ament, the Congress and the Nation would only be exercising the same caution rwn by the American forefathers in insisting on the first 10 amendments to 2 Cnstitution before actual danger to individual rights arose. But the opposition then argues that, to make treaty-writing more difficult, or rict the field in which the United States can act in international covenants, 4 embarrass, hamper, and restrict the country's internațional activities E: position. say that the proposals to rewrite and restrict the treaty-making powers e Constitution exhibit a basic mistrust of all three branches of the Governthat the fear of bad treaties is no reason to make it next to impossible to *** 200d treaties; and that the alarm is at root an admission of lack of faith -thirds of the Senate, in the executive officers, and in the Supreme Court, bless of whoever they may be. COMPLICATED ISSUE Th« whole question is complicated for various reasons. Recognized legal teries disagree on the basic facts. Court decisions and juridical interpre s have sometimes tended to confuse, while aiming to clarify. The language aw is frequently hard for the layman to grasp; but when simplified, either es or misses the fine legal points involved. The contention that treaties may imperil United States freedom and individual ́s stems from the fact that article VI of the Constitution states in part: 7. Constitution, and the Laws of the United Sates shall be made in Purnew thereof; and all Treaties made, or which shall be made, under the ity 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 of 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 b 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 contrar to normal international practice. In most other countries, a treaty does no attain full force as domestic law until made effective by legislative act. PRO 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 the quote no less an authority and able lawyer than incoming Secretary of Stat 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 State into international agreements on such matters without the country's being full aware of what is being done. 4. This process of "blank-check" treaty-making is not only a threat to man 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 betwee the States and the United States, should be valid. Since, in the last few years, the courts have overruled or disregarded earlie 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 i 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 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 wher treaties, while effective as international agreements, have no effect as interna law of the country unless incorporated into that law by an act of Parliament of 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 na tions imposing duties and obligations on the contracting states and not or 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. LIMITATIONS CONSIDERED Today, however, treaties are being made and submitted to the Senate for ratification, and others are proposed, which impose criminal and civil liabilities di 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 |