TREATIES AND EXECUTIVE AGREEMENTS

WEDNESDAY, FEBRUARY 18, 1953

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met, pursuant to call, at 10 a. m. in room 424, ate Office Building, Hon. William Langer, chairman of the comee, presiding.

Present: Senators Langer, Dirksen, and Butler of Maryland. Also present: Senators Watkins, Hendrickson, Bricker, Johnston, Smith of North Carolina.

Tayne H. Smithey, subcommittee counsel; and Charles Webb, tant to Senator Bricker.

The CHAIRMAN. The meeting will come to order.

This is the time set for taking up the Joint Resolution No. 1 progan amendment to the Constitution of the United States relative e making of treaties and executive agreements.

I will ask that there be placed in the record at this point a copy ate Joint Resolution 1.

The resolution follows:)

[S. J. Res. 1, 83d Cong., 1st sess.]

37 RESOLUTION Proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements

Remind by the Senate and House of Representatives of the United States of a in Congress assembled (two-thirds of each House concurring therein), at the following article is proposed as an amendment to the Constitution of ted States, which shall be valid to all intents and purposes as part of the tation when ratified by the legislatures of three-fourths of the several

"ARTICLE

SECTION 1. A provision of a treaty which denies or abridges any right enuated in this Constitution shall not be of any force or effect.

c. 2. No treaty shall authorize or permit any foreign power or any interral organization to supervise, control, or adjudicate rights of citizens of >nited States within the United States enumerated in this Constitution or any marter essentially within the domestic jurisdiction of the United States. r. 3 A treaty shall become effective as internal law in the United States through the enactment of appropriate legislation by the Congress.

4. All executive or other agreements between the President and any tional organization, foreign power, or official thereof shall be made only manner and to the extent to be prescribed by law. Such agreements shall *t to the limitations imposed on treaties, or the making of treaties, by

Sar. & The Congress shall have power to enforce this article by appropriate

This article shall be inoperative unless it shall have been ratified as *iment to the Constitution by the legislatures of three-fourths of the States within seven years from the date of its submission."

1

The CHAIRMAN. We have the honor of having the distinguishe Senator from Ohio, who is the author of this resolution, here with u I think you ought to be the first witness, Senator. We shall be d lighted to have you testify.

STATEMENT OF HON. JOHN W. BRICKER, A UNITED STATES SENATOR FROM OHIO

Senator BRICKER. Thank you very much, Mr. Chairman.

In the very beginning I want to explain for the purpose of the recor that this began, I think, about 2 years ago. I think the first present: tion I made on the floor of the Senate was in June of 1951. I in troduced a resolution there which was never considered by the Fo eign Relations Committee. Then I introduced Senate Join Resolution 130, which was of similar import as Senate Joint Resolu tion 1, which we are considering here today.

Hearings were held on Resolution 130. There were many wi nesses from the departments of Government and from the America bar. I testified at that time. After the presentation the chairma well remembers that I was busy on a security bill and several othe matters, on which investigations I was on, and we did not get the fina report out. It is possibly well we did not because there has been som subsequent thinking and work on it by the staff and by Mr. Webb d my office and representatives of the bar association that I think ha clarified some of the thinking, at least brought the wording into be ter shape to express what we really have in mind.

There is a singleness of purpose of course on the part of all of u the bar, and, I am quite confident, the departments of the Governmen now and the Members of the Senate who have joined in the presenta tion of this Resolution No. 1. There are 64 Members of the Senat that have joined in this resolution and many others, I think about or 8, have told me that when it is finally put in form and submitted b this committee they will support the matter when it comes to th floor.

I do not want to begin the hearing unless I express a very deep ar preciation to some people who have been very active in this, even lon before our office became interested in it. I especially want to pa my respects and give commendation to Mr. Frank Holman who wil be a witness here, the past president of the American bar, who in th very early days began to alert the lawyers of the country to the im minent danger of treaty law invading the rights of the America people under the Constitution.

Mr. Carl Rix is here also and Mr. Al Schweppe, with whom we hav talked, also Mr. Eberhard Deutch and Mr. Finch.

I also want to mention the fact that Mr. Hatch is here from th American bar, Mr. Clarence Manion, the former dean of Notre Dam University, has been very active throughout the country in speaking on this subject and pointing out the danger and the need.

Mr. McGrath of my home State of Ohio, Cincinnati, has been ver active. He has been a delegate to the ILO, representing the em ployers' point of view. He will be here to testify, and many others.

I do want to emphasize the fact that the American bar, throug its officials and through those who are leaders in the American bar

en very active and has submitted a resolution intending to elish the same thing that we are attempting to accomplish

a little different wording. I think after we have had the tation to this committee, Mr. Chairman and members of the tee, that we will be able to have the committee work out a that will meet the desires of all of us and accomplish what all attempting to accomplish.

CHAIRMAN. Senator Bricker, I would like to invite those genfrom the American Bar Association to sit at this table.

ator BRICKER. I am very happy to have them here. Mr. Rix d me he is going to present this subject matter to the meeting Newspaper Association of the United States at a very early which is a great opportunity to get this story presented to the 7. Most of the newspapers we have had reports from are g the purposes of this amendment.

Webb of our office has been in constant touch with your staff working out this amendment and in considering the testimony as adduced at the last hearing.

e are two reasons, Mr. Chairman, why Senate Joint Resoluhas attracted such widespread support. The American people to make certain that no treaty or executive agreement will be ve to deny or abridge their fundamental rights. Also, they want their basic human rights to be supervised or controlled ternational agencies over which they have no control.

at is the extent of the treatymaking power under the ConstiIn a speech last year in Louisville, Ky., Mr. John Foster who is now Secretary of State, said:

- aty making power is an extraordinary power, liable to abuse. Treaties ational law and also they make domestic law. Under our Constiatles become the supreme law of the land. They are, indeed, more than ordinary laws, for congressional laws are invalid if they do to the Constitution, whereas treaty law can override the ConstiTreaties, for example, can take powers away from the Congress and to the President; they can take powers from the States and give the Federal Government or to some international body, and they across the rights given the people by the constitutional Bill of Rights. -CHAIRMAN. May I interrupt to say that Mr. Dulles has written

ter stating that he wants an opportunity to appear here > committee and to express his views. I am placing the later into the record. Will you read the letter? SMITHEY (reading):

2 SENATOR LANGER: The receipt is acknowledged of your letter of Feb12163, in which you state that the subcommittee considering Senate on 1. proposing an amendment to the Constitution relative to the of treaties and executive agreements, has scheduled open hearings for Wesday, February 18, 1953.

ide to take this opportunity to inform you that the Department ynterested in this resolution and Secretary Dulles would appreciate pportunity to appear before the subcommittee to present the views →rtment. In addition, the Department would appreciate being given ity to file with the committee certain written material bearing on

> Secretary has only recently returned from his trip to Europe, he se, found a number of pressing problems requiring his consideraview of this fact, I would like to ask if it would be convenient for the tee to permit Secretary Dulles to appear before it at a later date, the to be fixed as the result of discussions with the subcommittee.

I would appreciate your letting me know if this arrangement will be conven to the subcommittee.

Sincerely yours,

THRUSTON B. MORTON,

Assistant Secretary (For the Secretary of State)

Senator JOHNSTON. Mr. Chairman, I do not think it needs a moti but I think it will be up to the chairman to arrange with the Secreta of State for a time that will be suitable to him and the subcommitt The CHAIRMAN. That is a good suggestion. I want to arrange it a time when Senator Bricker can be present.

Senator BRICKER. I will meet your convenience, Mr. Chairman, this matter. I have talked to Secretary Dulles about this and a talked to the Attorney General and talked to other members of t administration and there seems to be a common desire and purpose work out something that will bring about the end that we desire this amendment.

I appreciate the courtesy of the chairman, and I will be here at t time you set.

Senator JOHNSTON. Mr. Chairman, may I suggest one other thin Of course I am one of the coauthors of this particular legislati and I think it is needed, myself, but I think we ought to get all t light on the subject that we possibly can. For that reason I thi that you as chairman should take it up with the Justice Departme and have them have a representative here when Secretary Dulles a pears. They can have whomever they see fit, but he should be son good constitutional lawyer because this is a constitutional amendmen Senator BRICKER. I talked to both the Department of Justice a Mr. Dulles about the matter. I talked to Mr. Dulles before filing t amendment and he said to get it in and they would give proper stud to it.

Senator JOHNSTON. The reason I made that statement is that I ha not had time to study the wording of this constitutional amendmen I think we ought to be very careful in that field.

Senator BRICKER. There is no doubt about that. The represent tives of the American bar and ourselves are convinced as well as th staff. They have been constantly at work on it the last year or two.

In the statement, Mr. Chairman, Mr. Dulles did not exaggerate th danger inherent in an unlimited treatymaking power. From th decision of the Supreme Court in Ware v. Hylton (3 Dall. 199) i 1796 to the present time, the treatymaking power has been a persi tent threat to the liberties of the American people.

Last year, the State and Justice Departments in opposition to an treaty clause amendment, cited to this committee with approval th case of Ware v. Hylton. Senate Joint Resolution 1 would preclud the result reached in that case. Ware v. Hylton is a good place t join the issue.

These were the facts in Ware v. Hylton. In 1774, Hylton & Co gave a promissory note to two British subjects. To help defray th cost of the Revolutionary War, the State of Virginia passed a la providing that debts to British subjects would be discharged by pay ment to the State.

In 1780, Hylton & Co. paid $3,000 of its debt to Virginia. Mor than 3 years after this partial payment, the Treaty of Peace wit Great Britain was made. Article IV of the treaty provided:

Is agreed that creditors on either side shall meet with no lawful impediment ecovery of the full value, in sterling money, of all bona fide debts heretometracted.

Ware, an assignee of the British creditor, sued Hylton & Co. for fl amount of the original debt. In the Supreme Court, the ay of the Virginia statute was not questioned. Nevertheless the

e Court held that article IV, having become the supreme law land, operated to revive that part of the debt which had been shed by valid payment to the State of Virginia. By requiruble payment of a debt satisfied prior to the making of the y, Hylton & Co. was deprived of property without due process the fifth amendment to the contrary notwithstanding. Last Le Department of Justice asked this committee to prepetuate xtrine (record of hearings on Senate Joint Resolution 130, the extent that a treaty removes some State-created impediment collection of existing debts by aliens, it would be permitted by Joint Resolution 1. That was not the situation in Ware v.

The American debtor was required to pay a second time a ich had been legally paid prior to the making of the treaty. Lk in that case, as I remember, John Marshall represented the John Marshall, of course, was the justice who rendered the in Marbury v. Madison which made the laws of the Conbject to the provisions of the Constitution. I think the staff over that case pretty thoroughly.

sly, the negotiators of the Treaty of Peace with Great Britinot intend any such harsh result. Since payments by Hylton ders to Virginia were to advance a national purpose, the probpectation of the negotiators was that British creditors would mbursed by Congress.

as the negotiators of a treaty in 1783 could not foresee the a consequences of their language, the President and the Senate can never be certain that a particular treaty will not deny or some constitutional right of a citizen of this country. Perthe best modern-day example is the Genocide Convention. Since that treaty has been held up in the Senate Foreign Relations te. The Senate does not dare consider the merits of that ten, foreign policywise, until it is certain that nothing contherein will prejudice the constitutional rights of American -American Bar Association sees in the Genocide Convention a threat to freedom of speech, press, and the rights of persons d of crimes. Proponents of the treaty deny that such dangers Neither interpretation of the treaty is unreasonable. The Court has the final word, but it is constitutionally incapable ering an advisory opinion. No doubt the Senate could remove arer to American rights by a series of reservations to the treaty. Ter, the International Court of Justice has held that substantial ations to the Genocide Convention will nullify the effect of rati

The Senate will never be able to vote intelligently on the de Convention until such time as the supremacy of Constitution treaties is firmly established, and that, of course, is the purpose - amendment.