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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, te Office Building, Hon. William Langer, chairman of the com

e presiding. Pant: Senators Langer, Dirksen, and Butler of Maryland. to present: Senators Watkins, Hendrickson, Bricker, Johnston,

South of North Carolina. Tuyne H. Smithey, subcommittee counsel; and Charles Webb, Fast to Senator Bricker. Te CHAIRMAN. The meeting will come to order. is is the time set for taking up the Joint Resolution No. 1 pro

gan amendment to the Constitution of the United States relative : "e making of treaties and executive agreements. Il ask that there be placed in the record at this point a copy vite Joint Resolution i. The resolution follows:)

(S. J. Res. 1, 838 Cong., 1st sess. ] 7 RESOLUTION Proposing an amendment to the Constitution of the United States

relative to the making of treaties and executive agreements Pasiard by the Senate and House of Representatives of the United States of

* :* Congress assembled (two-thirds of each House concurring therein), 92***e following article is proposed as an amendment to the Constitution of

ed States, which shall be valid to all intents and purposes as part of the 203 when ratified by the legislatures of three-fourths of the several

“ARTICLE — To 1. A provision of a treaty which denies or abridges any right enu

this Constitution shall not be of any force or effect. 2. 2 No treaty shall authorize or permit any foreign power or any inter

a) orzanization to supervise, control, or adjudicate rights of citizens of >2«d States within the United States enumerated in this Constitution or any no matter essentially within the domestic jurisdiction of the United States. u. 3. A treaty shall become effective as internal law in the United States troczh the enactment of appropriate legislation by the Congress.

4 All executive or other agreements between the President and any

socal organization, foreign power, or official thereof shall be made only :3 zan.er and to the extent to be prescribed by law. Such agreements shall -ort to the limitations imposed on treaties, or the making of treaties, by 7. I The Congress shall bave power to enforce this article by appropriate 7. . This article shall be inoperative unless it shall have been ratified as edent to the Constitution by the legislatures of three fourths of the 2 states within seven years from the date of its submission.”

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TREATIES AND EXECUTIVE AGREEMENTS

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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 domu lighted to have you testify.

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

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

Bar In the very beginning I want to explain for the purpose of the recor.cery that this began, I think, about 2 years ago. I think the first presenta un tion I made on the floor of the Senate was in June of 1951. I ir su troduced a resolution there which was never considered by the Fortu eign Relations Committee. Then I introduced Senate Joir Spray Resolution 130, which was of similar import as Senate Joint Resolor of the tion 1, which we are considering here today.

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

There is a singleness of purpose of course on the part of all of war the bar, and, I am quite confident, the departments of the Governmer now and the Members of the Senate who have joined in the presents 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 the 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 wan

to pa my respects and give commendation to Mr. Frank Holman who wisat be a witness here, the past president of the American bar, who in that very early days began to alert the lawyers of the country to the ima minent danger of treaty law invading the rights of the Americas e 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 Dame University, has been very active throughout the country in speakinį 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 embed 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 41

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-re? rery active and has submitted a resolution intending to S1h the same thing that we are attempting to accomplish Is little different wording. I think after we have had the

stion to this committee, Mr. Chairman and members of the ****, that we will be able to have the committee work out a that will meet the desires of all of us and accomplish what

attempting to accomplish. (HAIP MAN. Senator Bricker, I would like to invite those gen

from the American Bar Association to sit at this table. *13409 BRICKER. I am very happy to have them here. Mr. Rix y me he is going to present this subject matter to the meeting

tits-paper Association of the United States at a very early 'n. Tich is a great opportunity to get this story presented to the 7. Most of the newspapers we have had reports from are

the purposes of this amendment.
- Tebb of our office has been in constant touch with your

staff Working out this amendment and in considering the testimony adduced at the last hearing.

are two reasons, Mr. Chairman, why Senate Joint ResoluPlus attracted such widespread support. The American people

to make certain that no treaty or executive agreement will be Te to deny or abridge their fundamental rights. Also, they 't want their basic human rights to be supervised or controlled - wional agencies over which they have no control.

at is the extent of the treatymaking power under the Consti"! In a speech last year in Louisville, Ky., Mr. John Foster malo is now Secretary of State, said: *mayohaking power is an extraordinary power, liable to abuse. Treaties

fr.ational law and also they make domestic law. Under our Consti= 91.py become the supreme law of the land. They are, indeed, more nemad ordinary laws. for congressional laws are invalid if they do

1 in the Constitution, whereas treaty law can override the ConstiTiraties, for example, can take powers away from the Congress and 2. tk the President; they can take powers from the States and give

be Forderal Government or to some international body, and they

as the rights given the people by the constitutional Bill of Rights. C-CHAIRMAX. May I interrupt to say that Mr. Dulles has written : Fitr tating that he wants an opportunity to appear here po in comunittee and to express his views. I am placing the =!**-r into the record. Will you read the letter?

TIIEY (reading): *7OE LANGER: The receipt is acknowledged of your letter of Feb****, in which you state that the subcommittee considering Senate :D 1. proposing an amendment to the Constitution relative to the

ties and executive agreements, has scheduled open hearings for m Leway, February 18, 1953. 74'se to take this opportunity to inform you that the Department Irrested in this resolution and Secretary Dulles would appreciate Degpurtunity to appear before the subcommittee to present the views intment. In addition, the Department would appreciate being given

ily to file with the committee certain written material bearing on _ Secretary has only recently returned from his trip to Europe, he

*, found a number of pressing problems requiring his considera10 of this fact, I would like to ask if it would be convenient for the .*** to permit Secretary Dulles to appear before it at a later date, the

E-> be fixed as the result of discussions with the subcommittee.

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SEN I would appreciate your letting me know if this arrangement will be conveni to the subcommittee. Sincerely yours,

22. in $t THRUSTON B. MORTON,

Assistant Secretary
(For the Secretary of State)

de Brit Senator JOHNSTON. Mr. Chairman, I do not think it needs a motio

autet 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 me

The CHAIRMAN. That is a good suggestion. I want to arrange it 1 a time when Senator Bricker can be present.

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

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

Senator JOHNSTON. Mr. Chairman, may I suggest one other thin; 1 T Of course I am one of the coauthors of this particular legislatir debu and I think it is needed, myself, but I think we ought to get all team light on the subject that we possibly can. For that reason I thin Ire that you as chairman should take it up with the Justice Department co and have them have a representative here when Secretary Dulles a lot pears. They can have whomever they see fit, but he should be son mica good constitutional lawyer because this is a constitutional amendmer

Senator BRICKER. I talked to both the Department of Justice al monso Mr. Dulles about the matter. I talked to Mr. Dulles before filing the chia amendment and he said to get it in and they would give proper stuc teni to it.

Senator JOHNSTON. The reason I made that statement is that I ha' not had time to study the wording of this constitutional amendmer 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 ti staff'. They have been constantly at work on it the last year or two.

diena In the statement, Mr. Chairman, Mr. Dulles did not exaggerate ti 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 tł case of Ware v. Hylton. Senate Joint Resolution 1 would precluo 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 & Cia gave a promissory note to two British subjects. To help defray the cost of the Revolutionary War, the State of Virginia passed a la providing that debts to British subjects would be discharged by paya ment to the State.

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

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sagreed that creditors on either side shall meet with no lawful impediment

ery of the full value, in sterling money, of all bona fide debts hereto** sera ted.

, an assignee of the British creditor, sued Hylton & Co. for fo] amount of the original debt. In the Supreme Court, the 2.5 of the Virginia statute was not questioned. Nevertheless the **e Court held that article IV, having become the supreme law

ard, operated to revive that part of the debt which had been cashed by valid payment to the State of Virginia. By requir

tie payment of a debt satisfied prior to the making of the :7. Hilton & Co. was deprived of property without due process

tie fifth amendment to the contrary notwithstanding. Last some Department of Justice asked this committee to prepetuate Ixtrine (record of hearings on Senate Joint Resolution 130, se extent that a treaty removes some State-created impediment silection 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 7.ch had been legally paid prior to the making of the treaty. ... in that case, as I remember, John Marshall represented the

John Marshall, of course, was the justice who rendered the

in Jarbury v. Madison which made the laws of the Conantes abiert to the provisions of the Constitution. I think the staff Troser that case pretty thoroughly.

sls, the negotiators of the Treaty of Peace with Great Brit-15st intend any such harsh result. Since payments by Hylton

eers to Virginia were to advance a national purpose, the probtractation of the negotiators was that British creditors would birsed by Congress.

as the negotiators of a treaty in 1783 could not foresee the 1. corsequences 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. Perirtet modern-day example is the Genocide Convention. Since

at treaty has been held up in the Senate Foreign Relations *tre. The Senate does not dare consider the merits of that tn. 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 e of crimes. Proponents of the treaty deny that such dangers

ther interpretation of the treaty is unreasonable. The of Court has the final word, but it is constitutionally incapable

gan advisory opinion.' No doubt the Senate could remove

or to American rights by a series of reservations to the treaty. 7-ter, the International Court of Justice has held that substantial matices to the Genocide Convention will nullify the effect of ratiT The Senate will never be able to vote intelligently on the

Convention until such time as the supremacy of Constitution

jes is firmly established, and that, of course, is the purpose unendment.

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