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using effect to treaty provisions as internal law within the United States.
Innanse the question of whether and to what extent a treaty is self-executing bay not clearly defined, all treaties should be made non-self-executing in
mestic area until Congress acts. This arrangement not only would let the several States of the United States E promptly where they stand, but would put the United States on a parity Tortor nations, and would put the world on notice of the limitations on Drea's treaty-making power. l' may be that limiting Congress to implementing treaties within the field of
jednated powers will exclude some areas in which treaties are now made or :.**
LOOPHOLE IN DOCUMENT s-rica's Bill of Rights forbids the Congress to change basic rights; but as Chastitution now stands, it does not prevent the basic rights from being
erd by a treaty made by the treaty-making agency, which consists of the par lest and two-thirds of the Senators present and voting. This is the loophole in the Constitution which Americans now face, and through
by be internationalists propose to move and, by treaty law, change and level
Arerican rights (both State and individual) and therefore change the form Pernment. The proposed amendments are not anti-U. N. measures. They do not prevent
tuted States from participating fully in all the activities of the United 1.*.* authorized by its Charter.
7b porused U. X. Human Rights Covenants, however, illustrate the dangers **t in the treatymaking power. They are predicated on the astounding e In-American theory that, although the basic rights cannot be changed by ***0. Con Tess or by our State legislatures, yet they can be impaired and even
ved by international action, and America's social and economic policies hind fixed by international declarations and treaties. üzerirans can and should do much within the U. N. to promote worldwide
for human rights. But rather than lower Americans' own standards of "!" berty to compromise with godless and Socialist mem ers of the U. N., Strital States should seek to bring them up to its standards.
CONSTITUTIONAL CRISIS There is also the great danger today that American sovereignty may be
**-down by those who seek a gradual approach to world government **b he United Nations. is no mere rhetorical statement to say that America faces a great constituI crisis-one that threatens the very foundations of the Republic.
ent of trying to incorporate in an international document the rights 2":ftwas which American citizens enjoy, whether under State or National
tion, and to make them international rights and matters of international **ration, and to give foreign governments as well as individuals and
e groups in foreign countries the right and opportunity to challenge ia's interpretation of its rights, and even to challenge its rights to the
- of its own courts, constitutes not only a grave threat to American **** but an actual and present threat to the independence of the United States.
prearnt treaty clause in the Constitution under present-day conditions is aan borse which is about to unload its hidden soldiery in America's midst. love and therefore is a constitutional amendment that will drive the beast out$be walls without more damage done and with its remaining armored sol$3 murely locked within.
Coins of these proposed amendments to the Constitution say no change in
atv-making procedure is necessary. They argue as follows:
would alter the basic structure of the Government as established by the 5:100; 5 are contrary to the basic theory of separation of powers among the three
is of the government;
** would seriously curtail the treaty-making authority of the United States, gum*in the Government from entering into many treaties which are beneficial 12. Intrary to the interests of the United States;
gospace with the historic and fundamental functions is certain It the field of foreign affairs that they would tidin
-1.3 States in the world today. * ***us ef the opposition follows:
30 Xosnized that, although govermental power ce sta s chere was even greater danger in rendering the
edieetively with problems it would face. LETS OF SOVEREIGNTY
the United States, in its dealings with other
cher nations exercise. They would seriously the nl State relations. They would make inter
Dore difficult to negotiate and enforce.
are they might be.
an of a treaty or treaties of information, on
UTSIDER ON MERITS
or the l'. N. The United States has announced it that in of objectionable features.
ha porte rights that the U. N. has been working on for 5 at bare mi vears from completion. utional criminal court is only under preliminary fat
ad is likewise years from becoming anything for at mesider,
Vier or even dangerous in the people of the world being a Diverte and guarantee human freedoms; and the United
ding in such endeavors. ne proposals for consideration, then is the time to Rheir merits. But we can see no valid reason to amend pak ;
orient the President and Senate from even considering on
what are regarded by most nations of the world as X Blv
Sales in international negotiations, it is incumbent on
- y pointing to particular treaties not yet ratified or not A muraritication, which rightly or wrongly are said to be
A przynale to urge that because Congress may pass, and doubt
bere laws, it should be deprived of legislative powers. If
se aontentions, of course, is that the President and the
#treaty which is repugnant to the spirit of the Constitukwer is not wholly unlimited. Treaties cannot violate specific
ustition, nor can they subvert its essential nature.
Lairs rights of free speech, press, or religion.
ont endment applies to all Federal action making any amend** ridgment by treaty or executive agreement of the essential grama al by the first 10 amendments unnecessary.
Caited States officials certainly would not knowingly advocate anything to
e the protection for individual liberties within the United States; but, in uppent, the Constitution as it now stands would preclude any treaty from 17.ng the effect, however inadvertently, of impairing or abridging human - erties within the United States.
CHANGE IN BALANCE
There may be room for doubt as to the merits or demerits of a particular >>Jibot those issues can be fully dealt with by the Senate in deciding whether
zarify it. But a constitutional amendment which would prohibit the United cies from dealing with the problems of human liberties at an international Re, and wbich would deny to the United States powers of sovereignty possessed
5.Ty other nation, would have the most damaging effects. Te American Bar Association proposal would place a different and even Duster limitation on the treaty power. It would limit the effective scope of ey treaties to those matters which are within the delegated legislative powers Pinutess, by providing that no treaty could have effect as domestic law except ** legislation enacted by Congress in the exercise of its delegated legislative ters This proposed denial to the Federal Government of a large part of the treaty > ter printed by the Constitution and repeatedly exercised since the beginning Site Republic, would produce a change in the balance between Federal and Se power.
The ABA's proposal that treaties, after ratification, require approval of both 3* of Congress is particularly objectionable, as it places a second hurdle ::traties before they have domestic effect. The delays and difficulties inherent such a two-stage process would make other nations reluctant to enter into ** with the United States. i is not to suggest that all treaties should be self-executing. There are laws
ding for participation by the House in cases where such participation is apor pruit, without making participation a rigid requirement in all cases.
THREE METHODS SEEN
There are three such ways: 1 A treaty may, and frequently does, provide that it is not self-executing, mak
risation by both Houses necessary to implement it through appropriations Laber ways;
: The Senate, with its power to impose reservations, can insist that a treaty the self-executing;
In an extreme case, there is the undoubted power of Congress to check the dent and Senate by subsequent statute to override the treaty so far as its
on domestic law is concerned. Tudes the Bricker resolution in particular, such treaties of friendship, comErs, and navigation as America has with Italy, Ireland, Colombia, Denmark, rrere would be impossible. American participation in such humanitarian ties as the Slavery Convention of 1926 would be ruled out. I would prevent the United States from accepting its own so-called Baruch
is for the international control of atomic energy. It would prevent the and States from ever accepting John Foster Dulles' scheme for an interna"1. striking force to guard against Soviet aggression. Teder it, the l'nited States could not have taken Texas or Hawaii into its great
5. The President could not have traded the overage destroyers for the -sic bases in the Western Hemisphere in the last war. at these amendments would do, in effect, would be equivalent to throwing
babe with the bath water. While they would undoubtedly automatically Loh treaties as have to do with the U. N. and with human rights, they would
he same time make any treaty-making next to impossible. The CHAIRMAN. We will adjourn until 10 o'clock tomorrow morning.
Whereupon, at 6:30 p. m., the subcommittee was recessed to be genitvened at 10 a. m., Thursday, February 19, 1953.)
TREATIES AND EXECUTIVE AGREEMENTS
THURSDAY, FEBRUARY 19, 1953
UNITED STATES SENATE,
Washington, D.C. The subcommittee met, pursuant to recess, at 10 a. m. in room 4. Senate Office Building, Hon. William Langer, chairman of the mittee, presiding. Present: Senators Langer, Dirksen, and Smith of North Carolina. Also present: Senators Watkins and Bricker. Wavne H. Smithev, subcommittee counsel. The CHAIRMAN. The committee will come to order. I have some letters and telegrams here which I would like to have -ie a part of the record. The record will show the names and tresses and briefly which side they are on. Tie CHAIRMAN. Will you call the first witness ? Mr. Smithey. Mr. Frank Ober, the committee on peace and law of the American Bar Association. STATEMENT OF FRANK B. OBER, ON BEHALF OF THE COMMITTEE ON PEACE AND LAW, AMERICAN BAR ASSOCIATION, BALTIMORE Mr. OBER
. For the record my name is Frank B. Ober, 640 Mathieson Baling. Baltimore, Md. I have practiced law for 40 years within
I want to speak very briefly about the first sentence of the proposed sediment as formulated by the American Bar Association. In the *** place
, let me say that when Senator Bricker opened the hearings 22 spring, he said a great constitutional issue was at stake. I think
was never been more plainly stated than by the Secretary of State The pointed out that the treatymaking power is liable to abuse
that treaties can be used to override our Constitution and to 3-t the rights of the citizens under the Bill of Rights.
Sow, that is the reason, Mr. Chairman, that I think the first senSie which makes a treaty that conflicts with the Constitution of the #ed States is of such tremendous importance. Let me just refer
briefly to a succession of events that seemed to me to emphasize - slangers because some of the witnesses who have testified or who
testify will say, “Let's wait until some damage has been done.” Jr. Chairman, vou will remember that one of the first things : the United Nations did was to have that Declaration of E can Rights. Now that declaration, which was supposed to be ***5 a statement of aspirations, has been in effect some years. I *** to call your attention to the fact that in the United Nations
miles of this room.