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similar rejection of such a limited construction as to the Chief Executive. it Waixon r. Jones (13 Wall. (80 U. S. 679 (1871)), the Supreme Court held is the freedom of religious association guaranteed by the first amendment deprired the Court of power to adjudicate ecclesiastical matters. Similarly the Tlfs have discussed the question of possible infringements of the first amendErst in enjoining trade boycotts, libels, and similar publications in the exer

* of their equity jurisdiction in the absence of statute, e. g., Gompers v. Bork's Store & Range Co. (221 U. S. 418 (1911)); Coeur d'Alene Mining Co.

Ninetix l'nion (51 Fed. 260 (Idaho 1892)).
In the Gompers case, for example, the Court said:

*Insisting, therefore, that the Court could not abridge the liberty of speech for freedom of the press, the defendants claim that the injunction as a whole as a nullity, and that no contempt proceeding could be maintained for any

rience of any of its provisions, general or special. * * * The defendants' 9:*ark on this part of the injunction raises no question as to an abridgment of 'rif speech, but involves the power of a court of equity to enjoin the defendants trum continuing a boycott which, by words and signals, printed or spoken, ity or threatened irreparable damage." (Italics supplied.]

Purbaps the most decisive argument in favor of the view that the President Od hr the first amendment is that ample justification in both law and policy rar. adduced in support of an interpretation of the first amendment which

id in«lude both the President and the executive branch within its prohibitions :obat n' <h justification can be shown for the contrary interpretation. That terpretation must rely wholly on the literal language of the amendment, and IN of necessity be based on the premise that mention of one branch of the Federal Government in that amendment implies an intent on the part of the drift-ben to exclude the other branches. However, no evidence of such intent ne shown. Xor can such intent be spelled out either from an analysis of the Date the Bill of Rights was framed to meet or the spirit in which the amendI-ut was conceived. On the contrary, all these factors point irresistibly to the upuj te interpretation.

Mr. MASLOW. This memorandum cites a case recently decided by the United States Supreme Court. The case is known as Joint AntiParixt Refugee Committee v. McGrath. You may remember that Tis the case where this organization challenged the authority of the President and the Attorney General to list them as subversive on the Attorney General's list. Six judges of the Supreme Court in the aure of that opinion indicated, in construing the President's power to et up such a list, that the President's power was limited by the fint amendment. And, indeed, it would come as a shock to us to bere, for example, that the President could establish an official

gion where Congress could not, and, similarly, if that language is it be read literally, it would mean likewise that the courts are not

by the first amendment since all that that language provides that Congress shall make no law.” And yet the courts have time

' ume again-perhaps I should not say time and time again*- courts have indicated that they, as well as the President, are bound : tir-t amendment.

X, there is another misconception of Senator Bricker and those -have testified in support of this resolution, and that is that once = '*p!!!i- ratified, and that it affects the domestic law of this country,

treaty is then immutable and not subject to any further govern18 aliange. I submit to you that is incorrect. The courts have

that where there is a conflict between a treaty which affects patie legislation and a later act of Congress, whichever is last in prevails. This doctrine was enunciated in one famous case in

o the exclusion of Chinese in the 19th century. It is Chae Chan

ril nited States (130 U. S. 581), decided in 1889. I-re, you may remember, America had entered into a treaty, the *5,5tritional treaty of commerce, friendship, and navigation with

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China which allowed the immigration of Chinese into this While the treaty was in effect Congress passed a statute which re- 3:11 stricted the right of Chinese to come to this country. The Chinese challenged that treaty, or that statute in the courts, and relied upon the treaty, and the court held that the satute governed and not the treaty. The same thing was held in the case called Hijo v. United States

* 10 (194 U. S. 315), decided in 1904, in which the Court said, at page 324:

It is well settledin other words, it is not arguable

ta) It is well settled that in the case of a conflict between an act of Congress and a treaty the last one in date must prevail * * *

If the United States Senate has improvidently ratified any treaties, and these treaties have had an undesirable effect upon domestic legislation, nothing prevents Congress from canceling those treaties as far as their domestic effect is concerned, or modifying them or doing whatever else is necessary. We don't need a constitutional amendment if we discover we have made a mistake in any treaty which has effects upon our domestic legislation.

Now, Senator Bricker made another statement which explains the motivation, his motivation, in introducing his resolution. I cannot put my hand on it, but the effect was that Senator Bricker feared that the draft Covenants on Human Rights would be used as a substitute for legislation and that they were intended as devices to circumvent the Constitution and to give Congress the power to legislate where it

T: now cannot legislate. I think a short answer to that fear is the so-called Federal clause of the draft Covenant on Human Rights. I am reading from the text of those drafts as reprinted in the Depart

ht ment of State Bulletin of July 7, 1952. The United States representatives at the U. N. have insisted upon the inclusion of such a ni Federal clause, and that clause provides :

This covenant shall not operate so as to bring within the jurisdiction of the Federal authority of a Federal state making such declaration, any of 11 the matters referred to in this covenant which independently of the covenant, would not be within the jurisdiction of the Federal authority.

3. Subject to paragraph 2 of this article, the obligations of such Federal state shall be: and then there are two paragraphs, and I would like to read them cach into the record.

(a) In respect of any provisions of the covenant, the implementation of which is, under the constitution of the Federation, wholly or in part within Federal jurisdiction, the obligations of the Federal Government shall, to that extent, be the same as those of parties which have not made a declaration under this article.

(b) In respect of any provisions of the covenant, the implementation of which is, under the constitution of the Federation, wholly or in part within the jurisdiction of the constituent units (whether described as states, provinces, cantons, autonomous regions, or by any other name), and which are not, to this extent, under the constitutional system bound to take legislative action, the Federal Government shall bring such provisions with favorable recommendations to the notice of the appropriate authorities of the constituent units, and shall also request such authorities to inform the Federal Government as to the law of the constituent units in relation to those provisions of the covenant.

What does that mean? It means that if a treaty respecting human rights is signed and a country like ours makes a declaration that it

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is a federal country, it has a federal form of government, the obligations of the country are twofold: (a) With respect to those matiers wholly or in part within the Federal jurisdiction it shall carry out whatever it has promised under the treaty.

Thi As to those matters which are not entrusted by the Constitution to the Federal Government but which are within the jurisdiction of the states, what the United States has promised to do, of would promise to do, is to bring those matters to the attention of the state governments, and thus the United States would be on a par with governments which are not federal.

Now, that federal clause has been advocated since 1947 in the draft (urenant and has been in every version that the United States has submitted. And as long as the United States submits that federal

lause there is no danger, I submit to you, that the draft covenant can change the essential relationship between Federal Government and State government in this country, or that the Federal GovernZient would be given the power to legislate as to State matters. And if, perchance, any treaty should be submitted to the Senate which does not have that Federal clause in it, the Senate has three courses of action. It can direct, it can refuse to ratify the treaty and in-truct the State Department to insert such a clause and to renegotiale it, or it can put reservations in the treaty, and as long as that is done there is no danger.

Now, one other misconception of Senator Bricker.

The CHAIRMAN. Just a moment. What is your opinion of that, Mr. Smithey? That is, the last thing he said there.

Mr. SMITHEY. Senator, that is directly contrary, as I understand it, to what the President's Commission on Civil Rights advocated in 1946. They said that if the Covenant on Human Rights is adopted ah even stronger basis for the adoption of certain civil rights profugls by the Congress could be had. I think the bar association has frented that statement. I think that there is a controversy on this print. I think Mr. Maslow recognizes that. His opinion is as he drated. But the question of whether the Covenant on Human Rohts could possibly change any rights that the Federal Congress 1..ght have. I think that that is in dispute. I think there are certain witnesses who have appeared before this committee previously who Late indicated that it is in dispute. There are legal minds who hold in the contrary of the opinion of Mr. Maslow.

The CHAIRMAN. In other words, you do not agree with the witness. Mr. SMITHEY. No.

Jir. Maslow. I do not want to engage in a legal argument, sir, at this ue. I just want to make one point, though: whatever the Presi3 (ommission said in 1946, this federal clause was submitted by o - United States mission in 1947. And they may very well have

mitted it in view of the statement of the President's Commission • 1946.

I do not think, Mr. Smithey, or gentlemen, that it is really a question of rol argument. Here is the statement of the Department of State tentative. He says: The feleral state article would insure that the constitutional balance between

muers delegated by the federal constitution to our Federal Government te one hand and the powers reserved to the States on the other would not ered by the proposed covenants on human rights.


iry arrest or detention.

China which allowed the immigration

- anguage is not clear enough, While the treaty was in effect Cong

this language is not suffistricted the right of Chinese to com

ehensive, to draw language

ensive and insert it in the challenged that treaty, or that statu

chose persons who are reprethe treaty, and the court held that

-harged with the responsibility treaty.

re of this danger. The same thing was held in the (194 U.S. 315), decided in 1904, i

with Mrs. Roosevelt, and she

vis essential and that the United It is well settled

- eaty without the federal clause. in other words, it is not arguablı e care to engage in an argument, It is well settled that in the case

cat this point one of the articles a treaty * * * the last one in dater

- it was introduced in the record If the United States Senate

izolution 130. It happens to be and these treaties have had a

ar with that, Mr. Maslow. Seclation, nothing prevents ( far as their domestic effect

ially proclaimed by the authorities whatever else is necessary.

- may take measures derogating, to the ment if we discover we har

s of the situation, from its obligations effects upon our domestici


2 I of this covenant. Now, Senator Bricker motivation, his motivati

pars. 1 and 2), VII, XI, XII, and XIIL put my hand on it, but the draft Covenants on

sescepted from section 2 is artcle VI, for legislation and thai the Constitution and t now cannot legislate. so-called Federal clai,

retation of this covenant on Human am reading from the

use which you have indicated, which ment of State Bulle

Would the Federal Government under sentatives at the U.

thts, the draft Covenant on Human Federal clause, and te under an emergency from this

protë shall be subject to arbitrary arrest or This covenant sha" the Federal authori; the matters referred

u raised the point. I was just about to would not be within

makes the same point. This is the so3. Subject to pa! state shall be: and then there

it as “one of the most vicious articles in each into the

II." I think he is simply laboring under (a) In respect

rhaps I can take a moment to explain this

I is, under the role

United States is engaged in a vast effort, jurisdiction, t.

vis to improve civilized standards throughbe the same as

istly proud of our Bill of Rights. We are article. (b) In rest

vitution. And we have endeavored to raise which is, und

es all over the world. jurisdiction

ere is only one provision of our Constitution cantons, au

in times of war or emergency, and that is the this extent. the Feder:

and that can only be suspended in cases of mendation

countries of the world, however, do not enjoy units, and as to the

??y of them have provisions which allow these

emergency, or what they call states of seige, to covenant

stitutional guaranties. What rights

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med States, therefore, in attempting to negotiate a treaty ..!! with the fact of these other countries' unwillingness to i and rigid guaranties, and so a clause was put in allowing

modify rights. it that Mr. Smithey makes, and I think that Senator Bricker that provision for the benefit of other countries may in some cate to allow the United States Government to suspend con

sal guaranties. There are two answers to that. First, there incation clause itself which reads, as I quote from paragraph 2: omon shall be no restriction upon or derogation from any of the fundamental

rights recognized or existing in any contracting state pursuant to law, i ulls, regulations, or custom, on the pretext that the present covenant

i recognize such rights or that it recognizes them to a lesser extent. l' other words, the mere fact that this draft covenant does not em

all the rights of American citizens, or does not recognize them to -ame extent that we do, does not entitled the United States to modirits rights. What we are doing is trying to raise the standards of er countries; we are not trying to modify our own.

The second answer is the answer I have given before. No treaty can I any way conflict with an enumerated right in the Constitution, if I read the Supreme Court cases correctly.

Mr. SMITHEY. Let me ask you this further question, Mr. Naslow

Mr. Maslow. May I just take one second. Perhaps it might be of se to have introduced in the record this bulletin of the State Departzent with all of the texts of the provisions in it, together with the mmentary. Senator DIRKSEN. Does that appear in the earlier hearings?

Mr. SMITHEY. This is a later draft of the covenant, is that not ht?

Mr. JLaslow. I think so. This is July 7, 1952.

Mr. SMITHEY. The one appearing in the record on Senate Joint Revolution 130 was dated 1951.

Mr. Maslow. If it is of use to you and the gentlemen of the commit***. I would be glad to introduce it.

Senator DIRKSEN. Suppose you submit it. Secretary Dulles is other going to submit a statement or is going to appear, and it is ensriy possible that he may submit some fortifying documents along This statement. If, however, he does not include it in his stateInt. I think properly it might be included in the record.

Jr. Maslow. I think perhaps I ought to identify it. It is a re-:t from the Department of State Bulletin of July 7, 1952 and it · entitled “Progress Toward Completion of Human Rights Tenants." The material referred to is as follows:)



By James Simsarian 3. t. X Commission on Human Rights reviewed sections of the two draft --Lants on Human Rights at its 9-week session at New York from April 14 J.14 13, 1932. The Commission decided to ask the Economic and Social

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