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I submit to you that nothing could be further from the truth. The treatymaking powers have been used as instruments of domestic legislation even before the adoption of our Constitution, and it was the primary purpose of the Founding Fathers, when the treatymaking power was set forth in the Constitution, to provide that it should be supreme over domestic legislation. One of the very first treaties ratified by the Senate was the treaty following the Revolutionary War, which we negotiated with Great Britain, and that treaty provided for the settlement of the rights of British creditors against American citizens, and, obviously, it conflicted with domestic legislation. It conflicted with the laws of Virginia. But the Senate of the United States believed it was more important to preserve the rights of American creditors in England and more important to negotiate a peace treaty with Great Britain than it was to maintain inviolate the laws of Virginia. So, throughout our history there have been innumerable occasions when treaties have been enacted deliberately designed to conflict with domestic legislation. And it is inevitable, sir, I submit to you, when we have a government like ours, a Federal Government, which governmental powers are divided between State and Federal Government, the Federal Government must be supreme. And there may be occasions when the Federal Government, in pursuance of its treatymaking power and its dealing with foreign nations, will take steps which contliet with domestic treaties. What we do rely upon, however, to insure that the fundamental nature of our Government and the relationships between Federal Government and States shall l'emizin the same, is that the Senate will not knowingly ratify a treaty which does neerless violence to domestic legislation.

I think she Bricker resolution is motivated by some other misconcmporious One of these misconceptions is that a treaty is superior to the l'ited States Constitution. And Senator Bricker cites in support of the strelement a case known as United States v. CurtissIl regista l'espporation. Its citation is 299 U. S. 304. And I haxsini moriend of some of the witnesses today made the same statement that it may be superior to a specific provision of the Constitution

The elected by Senator Bricker, the Curtiss-Wright case, RUN in so many words and, with your permission, I would like to mod just one paragraph:

it in impartant for dear in mind that we are here dealing not alone with an authority instead in the President by an exertion of legislative power, but with Nu un authority plus the very delicate plenary and exclusive power of the Ident as the sale organ of the Federal Government in the field of international relations, a power which does not require as a basis for its exercise annet of congress, but which, of course, like every other governmental power, must be pienied in subordination to the applicable provisions of the Constitution.

Note that language: like every other governmental power, must be exercised in subordination to the applicabile provisions of the Constitution.

The same holding was made in the famous case of Geofroy v. Riggs, decided in 1890. In that case the Supreme Court said in this un mistakable language, and I quote again. The citation is 133 U. S. 258 at 267. Here is what the Court said:

It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.

The "it" referred to there is the treatymaking powers. And the Court, you notice, says that "It would not be contended” even that the Teatymaking power extends so far as to authorize what the Constituson forbids.

Another leading case in support of the proposition that the Constitution is supreme, and not the treatymaking power, is the famous 2e of Vissouri v. Holland, known to every law student, the Migracors Bird case. There the Court held:

The treaty in question does not contravene any prohibitory words to be found
D the Constitution.
And there are other cases cited on page 4 of our memorandum to the
Allie etfect.

Mr. SMITHEY. Did you say "held" or "stated" ?
Mr. Maslow. Stated, I should say,

In fact, sir, with all modesty, I challenge anyone to cite a single case if the United States Supreme Court which holds that the treaty

ak ng power is superior to the specific enumerated provisions of the (ou-titution.

In argument is often made arising from the language of article VI of the Constitution. You remember article VI, the so-called treatymaking article, provides : This ('onstitution and the laws of the United States which shall be made in uance thereof shall be the supreme law of the land. And it says also: And all treaties made or which shall be made under the authority of the United ates shall be the supreme law of the land.

An argument has been made that, since it provides that the laws cat be made in pursuance of the Constitution, and the treaty is 2.-rely made under the authority of the United States, the treaties w not have to be made in pursuance of the Constitution. I think that rading is due to a historical misconception. The reason for that s'quage was that there were certain treaties entered into by the Chied States, before the Constitution was ratified; and, therefore, it wis necessary to provide that these treaties entered into before our l'alletitution was signed were to become the supreme law of the land. pe of these treaties was the treaty of peace with Great Britain.

There is another misconception which perhaps may motivate Sena*Bricker and some of his cosponsors, and that arises again, I bete, from a misreading of the first amendment of the Constitution. You remember the first amendment provides :

progress shall make no law respecting an establishment of religion or pro::02 the free exercise thereof or abridging the freedom of speech

so on. The argument has been made that that language "Congress shall cuiše no law” is not a prohibition upon the executive branch and,

fore, the President is free through treaties to violate the most imtant amendment in the Bill of Rights, the first amendment. When I testified last year, sir, Senator Hendrickson asked me about ai question, and I asked leave to submit a memorandum on the

I did submit a memorandum, but through inadvertence, per

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haps, it was not introduced in the record. With your permission, I set would like to introduce a copy of that memorandum.

Senator DIRKSEN. It will be included.
The CHAIRMAN. Is it very long?

Mr. Maslow. It is nine pages. That is brief for a memorandum on constitutional law.

Senator DIRKSEN. I think it is important on this very important point, and since it was inadvertently omitted last year it will go in. XDEE

(The material referred to is as follows :)


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The first amendment to the Constitution of the United States provides that Congress shall make no law respecting an establishment of religion or prohibit- 2s, h ing the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assembly, and to petition the Government pret for a redress of grievances.”

Read literally, this amendment expresses no limitation on the action of the Executive or the judiciary and would permit infringement of our basic liberties by these officials without legal recourse to the individual oppressed. Such an interpretation would seem, however, to be incompatible with the pattern of a forth government of limited powers with safeguards for individual liberty embodiedla in the Constitution and is not in accord with the principles espoused and prac. It ticed in this country from the adoption of the Constitution to date. Conse- street li quently, it would appear both necessary and proper to examine the circumstances surrounding the adoption of the first amendment, the gloss put on it by the set to courts, and the actual practice of the judiciary and the executive branches in

biri order to determine whether the literal meaning must be discarded in favor of an interpretation which' captures more fully the basic spirit and intent of the con- u stitutional draftsmen.

Students of the subject have advanced varying reasons for the omission of a les limitation on the President and the judiciary in the first amendment. One explanation has been that since the amendments to the Constitution were framed. to meet specific objections made concerning the power of Congress the framers were not concerned with and therefore neglected to express limitations on the President and the Judiciary (Zechariah Chafee, U. N. Covenant on Human Rights, 1951, Wisconsin Law, Rev. 389, 449).

A second explanation given for the particular grammatical formulation in the first amendment is based on an analysis of the changes made in the original draft in of the amendment. As originally drafted by Madison, the amendment contained three separate proposals, all in the passive tense (1 Annals of Congress 434 (June 8, 1789) 1834 ed.).

For example, the draft provided with respect to freedom of religion that “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”

The proposals with respect to freedom of speech and freedom of assembly were couched in similar terms:

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

“The people shall not be restrained from peaceably assembling and consulting for their own common good nor from applying to the Legislature by petition, or remonstrances for redress of their grievances."

The original draft of the amendment also contained a provision dealing with prohibitions on the States: "No State shall violate the rights of conscience, orda the freedom of the press, or the trial by jury in criminal cases” (1 Annals of Congress 435, 1834 ed.).

Thereafter, because of objections from the States, the provision concerning the States was eliminated. Thereupon the draftsmen, desirous no doubt of assuring that the amendment express no limitation on the States, changed the sentence structure from the passive construction which could be viewed as such a limitation to the active construction Congress shall make no law * * *” There is no indication, however, that by specifying “Congress," they intended to exclude the Executive from the prohibition of this amendment.

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At least six justices of the Supreme Court have indicated that, when brought Ne, the first amendment must_be considered in determining the validity ? Ejecutive action. In Joint Anti-Fascist Refugee Committee v. McGrath (34)

S. 123 (1951) ), the Supreme Court was concerned with the constitutionality the action of the Attorney General pursuant to the President's loyalty order Eutive Order No. 9835) in designating certain organizations as Communist • wybversive. So legislative act empowered or directed the President to prozale such an order. The petitioning organization challenged the Attorney

eral's action and the Executive order as violative of the 1st, 5th, 9th, and 10th nements. Justice Black in a concurring opinion and Justice Reed in a dissenting opinion

which Chief Justice Vinson and Justice Minton joined, explicitly considered pyution whether the Executive order violated the first amendment. Justice Black stated (at p. 143):

More fundamentally, however, in my judgment the Executive has no con/* tatunal authority, with or without a hearing, officially to prepare and publish

is challenged by petitioners. In the first place, the system adopted effecspy punis'ies many organizations and their members merely because of their 51al beliefs and utterances, and to this extent smacks of a most evil type Prship. This cannot be reconciled with the first amendment as I interpret

[Italics supplied.) Hatice Reel set forth the same view about the applicability of the first

iment. He stated (at p. 199): mint amendment.--Petitioners assert that their inclusion on the disloyal list sabridge their freedom of speech, since listeners or readers are more diflicult

bain for their speeches and publications, and parties interested in their i ri are more hesitant to become associates. The refugee committee brief adds at 'thugbt' is also abridged. A concurring opinion accepts these arguments

bira pint of concluding that the pub ication of the lists 'with or without a constig' violates the first amendment.

*Tols Court, throughout the years, has maintained the protection of the first *#dment as a major safeguard to the maintenance of a free republic. This ??' has never suffered from an enforced conformity of expression or a zlation of criticism. But neither are we compelled to endure espionage and

10. Wide as are the freedoms of the first amendment, this Court has never -lister to deny the individual's right to use the privileges for the overturn of + and order *. Il paese Justices implicitly accepted and assumed the proposition that the Presi* is brand by the first amendment. The opinion of the Court (delivered by - Burton and in which Justice Douglas joined), although it did not dis

the substantive issue of whether the loyalty order offends the first amend- staind that under certain circumstances, not here relevant, the order would

raised questions under the first amendment, thus indicating that these two **** are also of the opinion that an Executive order as well as the law of · Tes must meet the standards of the first amendment. Mini Burton said (at p. 136) :

1:, upon the allegations in any of these complaints, it had appeared that the **s of the respondents, from which relief was sought, were authorized by the * <!port under his Executive Order No. 9835, the case would have bristled with s'utional issues. On that basis the complaint would have raised questions

ibe justiciability and merit of claims based upon the 1st, 5th, 9th, and 10th bekaments to the Constitution. It is our obligation, however, not to reach those

"ness the allegations before us squarely present them." 1: Er parte Milligan (4 Wall. (71 U. S.) 2 (1886)), the Supreme Court was coni with the question whether a military tribunal appointed by the President

pstitutionally, during a period when the civil courts were functioning, armed try a civilian, the President's action was challenged on the ground that it

+] tbe fourth. fifth, and sixth amendments to the Constitution. Although se of violation of the first amendment was not raised, the language of snien seems to bring that amendment within those guaranties which the tom «annot violate. At page 124, the Court said:

claimed that martial law covers with its broad mantle the proceedings

niitary commission. The proposition is this: That in a time of war the under of an armed force (if in his opinion the exigencies of the country -.e it, and of which he is to judge), has the power, within the lines of his ary district, to suspend all civil rights and their remedies, and subject citi


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vil: and in the exercise of his lawful

is superior officer or the President - its importance; for, if true, republi

in end of liberty regulated by law. turs erery guaranty of the Consti

Diependent of and superior to the e King of Great Britain was deemed i isi med it to the world as one of the

rindependence. reasons, they (the founding fathers) u maintain by incorporating in a written opere last proved were essential to its preser

on the President or Congress disturb, laveus corpus.” [Italic supplied.]

IN ict of Columbia in the case of Dailey *)), also discussed whether the PresiJendment, holding by implication that e safeguards contained therein.

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sal impinged upon the rights of free * * * amendment, since the dismissal was སྐྱེ་ : * སྦྲག་ This suggestion goes not to the pro

see siismissal itself. But the plain hard . a sluncerned, there is no prohibition against et because of their political beliefs, activimeet vuuding alone, does not prevent Republican

s or Democratic Presidents from dismissing

mnie that the Executive is bound by the prohibipretkorporated in the fifth amendment. The y person shall * * * be deprived of life, liberty, tyw ** *." The identical language appears

mendment. The Supreme Court has held

*** of the 14th embraces all the freedoms of Erster abridgment by every branch of the State

* l'. S. 652, 666 (1925)); Near v. Minnesota sin the language of the amendments is identical,

evo in the due-process clause of the fifth amendminta of the first and extends their prohibition to all

is opptrent, including the executive. spina XX Edgerton in his dissents in the Joint Anti

Citir. 1950)), and the case of Bailey v. Richardson

I. In the Joint Anti-Fascist case, Judge Edgerton hether the President's Executive order contravened * viteti reference to the fact that read literally that

Himares. However, he went on to state (at p. 87) ******** of the 14th amendment extends the prohibition plan preven (ause of the 5th amendment must extend it

un Edgerton views Presidential action as “Federal

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***N? Juise Edgerton cited the following language of the este o bipoll erkers v. Mitchell (330 ('. S. 75, 94-95 (1947)):

Bien que la interference by the Hatch Act and the rules with
Bus Deportem of the civil servaint under the 1st, 9th, and 10th

På due process as a guaranty of freedom in those * * partii" impairment of that right under the fifth amend. MARE***?? prefer the amendments are basically the same.”

de wsident is bound by the 1st amendment as transit & Pentaduent, since the 5th amendment has the same otwoch in turn subsumes the protections of the 1st is also

(UNPunt on Human Rights (1951 Wis. L. Rev. 389, 441 is itt Mealent is bound by the first amendment is further bolCreative son versions of the courts which indicate that the judiciary wil huid cont amendment. Their rejection of the literal reading

si'nin harakatd with repeat to their own obligations clearly implies a

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