4. I see no reason why the United States should not have power to make treaties on any legitimate subject of international concern, and have the power to enforce such obligations by congressional legislation. In other words, existing aw (including the migratory-bird case, Missouri v. Holland (252 U. S. 416)) is satisfactory.

While I may be prone to attach undue importance to historical considerations, I must confess that personally, with all due deference, in a matter of constitutional statemanship such as the desirability of the "supreme law of the and" clause, I prefer to follow the unanimous view of the Founding Fathers, including Madison, Monroe, Jefferson, Jay, and Adams (and of Justice Holmes, for that matter, author of the migratory-bird decision) rather than my eminent Contemporaries who support this proposed amendment.

5. But if there really were a serious problem in connection with treaties, a sple solution is at hand, without amending the Constitution. In fact there are two such simple solutions. (1) If Congress does not like a treaty, it can pass a subsequent act of Congress which will supersede the earlier treaty, so far as its effect in domestic law is concerned. (2) If desired, a "nonself executing" fanse could be included in every treaty. Edgar Turlington has pointed out the possibilities of this technique. The State Department and Senate, if necessary, euld make it a standing rule not to approve any treaty without such a clause. You understand I am not recommending use of these two remedies. I am serely saying that if there were a need for doing anything at all those simple medies would be preferable to that of a proposed amendment changing an Eportant part of our Constitution.

6. Personally, I think that even such a rule would be more than is needed. The real remedy, of course, is simply the exercise of wisdom and firmness on the art of the State Department and Senate in dealing with individual treaties on Leir merits. Other countries cannot compel the United States to become a y to a bad treaty if we don't want to.

7. What has just been said in paragraph 6 applies especially to the genocide and human-rights treaties, opposition to which, I feel, is at the root of the present her about treaties. As someone wittily wrote in the American Bar AssociaJournal, some people are worried because if the United States can make a eaty with Canada which will empower Congress to prohibit shooting migratory is, we might also make a treaty with Liberia under which Congress might ohibit shooting or otherwise lynching migratory laborers in certain parts of 1- country.

Personally, I think it very questionable whether there is any real need for those stewhat visionary and vague pronouncements on abstract human rights and Pocide as part of the law of the land in this country. If our statesmen do not asider those treaties desirable, we do not have to adopt them as part of our 4. No foreign nation can compel us to if we don't want to.

Of course, as was said in the New Yorker magazine, it is hard to get men in thic life to vote against a proposal condemning sin, even if there is no real need the measure proposed. This is especially true when it is being pushed by e technique which the Bible reports as successfully used by the widow against njust judge. I should not be unhappy if the proponents of those treaties and the proposed constitutional amendment succeeded, like the two snakes in the , in destroying and consuming each other so that nothing further would er after be heard of either propsal. But I should be sorry to see those two tes defeated at the price of an amendment to our Constitution in a feature the Founding Fathers rightly considered vital to the welfare of the Nation. Senator DIRKSEN. I feel quite humble in the presence of one who sch an authority on the constitutional history and the life of mas Jefferson, but I thought as an addenda to your excellent paper Fould include what Jefferson said in the Manual of Parliamentary tice:

By the general power to make treaties, the Constitution must have intended prehend only those objects which are usually regulated by treaties and be otherwise regulated.

And also:

must have meant to except out all those rights reserved to the States; for y the President and the Senate cannot do by treaty what the whole Govnt is interdicted from doing in any way.

Mr. DUMBAULD. I think that is sound doctrine. He was opposed to a large diplomatic establishment too.

Senator DIRKSEN. So I understand.

Mr. SMITHEY. Before you go, in order to make perfectly clear for whom you are appearing, are you appearing on your own behalf or on behalf of the Fayette County Bar Association?

Mr. DUMBAULD. Well, I would not wish to attribute all that I have said here officially to anybody. Just consider it as said on my own authority, for whatever it may be worth.

Senator DIRKSEN. Extend my good wishes to the Uniontown bar. Mr. HOLMAN. Your bar has not by resolution acted on this, as I understand it.

Mr. DUMBAULD. No, sir. We are one of the pleasant bars where we avoid controversial topics and have fellowship and feeds every

year.

Thank you, Mr. Chairman.

Senator DIRKSEN. Thank you, Mr. Dumbauld.

Mr. Mitchell?

STATEMENT OF JAMES G. MITCHELL, WASHINGTON, D. C., MEMBER OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

Senator DIRKSEN. Mr. Mitchell, will you please state your name and identify yourself for the record.

Mr. MITCHELL. My name is about all the identity I have, Mr. Chairman, James G. Mitchel. I do not represent anybody but myself, and I want to make that clear because much of what I would like to present is addressed somewhat to the statement that was made by the two chairmen of the committees of the Association of the Bar. Senator DIRKSEN. You are a member of the bar?

Mr. MITCHELL. I am a member of the Association of the Bar, and I was its chairman of one of its committees, the foreign-law committee.

Senator DIRKSEN. You mean here in the District of Columbia? Mr. MITCHELL. No; in New York.

Senator DIRKSEN. But you reside here presently?

Mr. MITCHELL. Temporarily. I am a resident here at 1739 N Street NW.

Senator DIRKSEN. You may proceed.

Mr. MITCHELL. Senator Dirksen has already referred to a state ment of Thomas Jefferson. While I have embodied it here in my statement incidentally, I shall not read it.

The CHAIRMAN. I am sorry, there is a quorum call. I think we will have to recess until 2 o'clock. Will that be convenient for you Mr. MITCHELL. That will be quite convenient.

The CHAIRMAN. Very well. The committee is in recess unti 2 o'clock.

(Whereupon, at 12:25 p. m., the subcommittee was recessed, to b reconvened at 2 p. m., this same date.)

AFTERNOON SESSION

The hearing reconvened at 2 p. m., upon the expiration of the reces The CHAIRMAN. The committee will come to order.

Mr. Mitchell, will you continue?

STATEMENT OF JAMES G. MITCHELL, WASHINGTON, D. C., MEMBER OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORKResumed

Mr. MITCHELL. Thank you, Mr. Chairman. My paper here is rather addressed as a reply to positions that have been taken by those who have opposed the resolution and particularly the chairmen of the committees on Federal legislation and international law of the Association of the Bar of the City of New York, and those views apparently are entertained by a number of other witnesses who opposed these amendments.

The privilege of appearance to submit certain views in support of proposed amendments to the Constitution of the United States oncerning treaties and other international engagements is one that I welcome with diffidence, and an overwhelming sense of their complexity.

And it is necessary that I at once disclaim representation of any organization, group, or individual, other than myself. Though memer of long standing of the Association of the Bar of the City of New York; former member of an important committee, and its chairman for four consecutive years, in no sense do I profess to speak on the association's behalf, or of any of its constitutents, individual or collective.

As I shall have occasion to suggest exceptions to the Statement in Opposition to Senate Joint Resolution 1, 83d Congress, presented by e chairmen, respectively, of the association's committees on Federal gislation and international law, I tender this apology for its zention.

TREATIES THE SUPREME LAW OF THE LAND

Embodiment of solemn international undertakings in the supreme I of the land, at the beginning of our Republic's history, was a bly honorable gesture. It has had little, if any, emulation. It was subtless desirable in the then prevailing climate, which, happily, no Ager exists. But that its authors could have foreseen its transmutaon into an instrument of political revolution is inconceivable, and ar attention has probably already been invited to Thomas Jeffern's apprehension1 that the

Seneral power to make treaties" *** must have meant to except out all those ts reserved to the States, for surely the President and the Senate cannot 5 treaty what the whole Government is interdicted from doing in any way. Mr. Justice Holmes has reached a contrary conclusion, but this by means invalidates contemporary opinion.

Judicial values indeed derive from their illumination of shackles which already we are enchained; the eventual bondage, with which e are threatened, and the paramount imperative of preventive contational measures.

STATEMENT IN OPPOSITION-METHOD OF DISCUSSION

Afirmative discussion and recommendation preliminary to the critiI shall hereinafter venture would have been more in keeping with

fal of Parliamentary Practice, Thomas Jefferson.

ari v. Holland ((1920) 252 Ú. S. 416).

my own inclination. However, upon reflection, and having in mind time and other limitations, immediate examination of the Statement in Opposition appears more profitable, and my own affirmations may appropriately be made in its course. I therefore respectfully submit the ensuing observations.

EXCEPTIONS GENERAL

My first exception is that the statement's tenor is authoritarian. It demands nothing less than the sacrifice of liberty upon the altar of expedition. It assumes conclusively that, if action by means of treaty or executive agreement is precluded, it cannot be taken at all. Historical and hypothetical situations are envisaged; and it is argued, in effect, that only through treaties and executive agreements can their difficulties be resolved.

No inquiry or mention is made concerning the availability of traditional legislative processes. Inferiority of the legislative branch is implicit in the arguments, and the Congress, representative as it is of all the people, is to be banished from the community of foreign policy and interest. These are the age-old assumptions of tyranny.

HISTORICAL ANALOGY

We have witnessed during recent years two historically recurring phenomena: executive exaltation and legislative disparagement. The purpose is mutual.

Resolution to destroy inheres in the determination to discredit. For its enemies recognize that, once the legislative element is neutralized, the representative system will disintegrate. The judicial arm will be impotent before the resulting despotism.

Those who would impair and deprive the Congress may well heed Eliot's solemn warning:

None have gone about to break parliaments, but in the end parliaments have broken them.

Charles Stuart believed he could defy the admonition, and did. Eliot died in the Tower; Charles on the block. His successors pursued his policies, and ended the dynasty. Liberty once more grappled with Tyranny and triumphed.

EXCEPTIONS-PARTICULAR

1. The statement contains the following observation:

It is a tribute to the good sense of our successive Presidents and Senators tha to this day no case has arisen calling for a decision that a treaty was contrar to the Constitution. We are indeed fortunate that our fundamental law ha worked out so well.

It may well be that no decision declaring a treaty contrary to the Constitution has been invited, but the generous ascription which antic ipates the authors' assertion is non sequitur. The reason inheres i the judicial attitude. This was early declared, and there has bee no material deviation. Mr. Justice Chase, in the Ware case,3 expresse his doubt and determination in the following language:

Ware v. Hylton ((1796) 3. Dall, 193, 237).

If the Court possess a power to declare treaties void, I shall never exercise it but in a very clear case indeed. One further remark will show how circumspect the Court ought to be before they would decide against the right of Congress to make the stipulation objected to. If Congress has no power (under the Confederation) to make the fourth article of the treaty, and for want of power, that article is void, would it not be in the power of the Crown of Great Britain to say whether the other articles in the same treaty shall be obligatory on the British nation.

Mr. Chief Justice Marshall later uttered similar sentiments: 4

(306) The judiciary is not that department of the Government to which the assertion of its interests against foreign powers is confided, and the duty comLonly is, to decide upon individual rights, according to those principles which the political departments of the Nation have established. If the course of the Nation has been a plain one, its courts would hesitate to pronounce it erroneous. We think, then, however individual judges might construe the Treaty of St. Ildefonso, it is the province of the court to conform its decisions to the will of the Legislature, if that will has been clearly expressed.

And later in the same opinion:

(308-9) If it be said that this statement does not present the question fairly, because a plaintiff admits the authority of the court, let the parties be changed. If the Spanish grantee has obtained possession, so as to be the defendant, would a court of the United States maintain his title under a Spanish grant, made subsequent to the acquisition of Louisiana, singly on the principle that the Spanish construction of the Treaty of St. Ildefonso was right and the American construction wrong? Such a decision would, we think, have subverted those principles which govern the relations between the legislative and judicial departments, and mark the limits of each.

The statement cites authorities which lend no support to its inference: that of Ware rejects it.

Emphasis upon the assertion in Geofroy v. Riggs that—

It would not be contended that it [treaty power] extends so far as to authorize what the Constitution forbids

merely records its authors' oversight. The point is not what the Constitution does or does not forbid; for, the treaty having been consummated, the bounds are irrevocably set upon the judicial prerogative. The courts must apply its provisions as litigants appear before them; they cannot invoke constitutional inhibitions as a shield against their impact.

Mr. Justice Holmes' utterance in Missouri against Holland, that, for treatymaking purposes, the "authority of the United States" is an equivalence with the President and two-thirds of the Senate present and voting, is at once agreeable with the sentiments of Justices Chase and Marshall, and an ominous warning.

If his assumption is sound, the "authority" as thus understood, is Telusive. Sovereignty has functioned through the media of its own controllable choice. Courts derive their authority to review acts f Congress, and adjudicate their consistency, from an express limiarion in article VI of the Constitution. No such restriction, even by zplication, is imposed, in respect of treaties.

Comparative examination of the statement's objection to section of the resolution requires reproduction followed by text of the jection:

ejection: Section 1 is not only unnecessary, but also it introduces an ambiguwithin itself. Is it intended here to reach out and prohibit treaties in situa

•Prater v. Neilson ((1829) 2 Peters 253, 306, 308-309).

Centroy v. Riggs ((1890) 133 U. S. 258); Missouri v. Holland (supra); Ware v. Hylton