something simi. want to have so, into it. I just v Reverend Be who voted ag concerning the the thing to connection w My answer to has within it make it effec part of the

I also po

ment, any upon any done unde amendme Senator

pro and that add The ( while. appoint Is M

Mr. i The man?

Convention. The reathe time our study was he proposed new article the Constitution of the powers of the Nation, Tag of treaties, and the Se founding of the Repub

Joint Resolution 1 do not sal which was abandoned. stance, it would introduce - relations, would limit in e executive departments to Senate, and would nullify the ents and interpretations built e courts over the long period atified by the States.

1 would invalidate any proedges any right enumerated in tended to assert the supremit is unnecessary, because the w is and always has been. If, have some meaning other than ches from time to time, as cons of treaties may arise, to discover the Constitution, and just how or fected by a provision of a treaty. existence of private or even public i and isolated from any relationtical or social status of the Nation with other sovereign powers.

tion 1 contains restrictions on the to be in derogation of the authoron as one of the sovereign powers of the character which a despotic sovere country, but certainly no such proConstitution of the United States. It

it any foreign power or any international er adjudicate rights of citizens of the United umerated in this Constitution or any other mestic jurisdiction of the United States.

s part of the Constitution, would imme.. would not prohibit it entirely-on the States to enter into international engagements

of atomic energy, for general disarmament, rough which wars may be outlawed and prearing peace—may some day shower its blessThese goals, if and when reached, will require

spection. It was on that very point that of atomic energy for peaceful purposes failed. inated international inspection as an imperay that there would be no violations of disarma

Bent terms and conditions, but the Soviet Union objected, and the effort had to be postponed. If the time is ever ripe again to confer such a boon on all the peoples of the world, the United States would be prohibited under the provisions of section 2 from participating. It is indisputable that without our participation there could be no restrictions on the manufacture of atomic and other weapons of war. It is unthinkable that section 2 could be seriously considered at any time, and especially during a period when the free peoples of the world are living in an era of cold and hot wars, with the fear of total onflict mounting day by day.

I emphasize the injury to the United States, in its efforts to bring hout worldwide peace, from the provisions of section 2 of Senate Joint Resolution 1. But that is not the sole objection, although it ay be by far the most important. The section would prohibit paripation by the United States in international control or inspection der treaties to limit the production, manufacture, and use of narties. Then, too, the section may operate to interfere with the effecive enforcement of international measures against white slavery, and t may adversely affect measures for the extradition of criminals. It is hardly necessary to point out to the members of this comittee that the language through which the prohibition against the xercise by foreign powers and international organizations of authory over rights of citizens of the United States within the United ates may be susceptible of different interpretations. For example, is not clear whether the restriction applies solely to rights within the United States of citizens within the States. And as others have dicated, if it applies to citizens outside of the United States, treaties for reciprocal nondiscriminatory treatment would be invalid in some

stances.

The CHAIRMAN. Mr. Holman is here from the American Bar AssoI would like to have you ask some questions on this section if you would.

Mr. PERLMAN. May I finish this statement, please?

The CHAIRMAN. Before you go further, I would like to have him ask me questions.

Mr. HOLMAN. Mr. Chairman, Mr. Perlman and I have never agreed . any matter of law that I know of, and would not now. But as I derstand section 2, which is drawn differently from the American Dar section, it does apply and is intended to apply exactly as he states

hin the United States, solely to the rights of citizens within the United Mates, and within the States.

Tere is no intention on Senator Bricker's part, as I understand it, at it would apply to citizens outside the United States. The matter f narcotics and atomic energy has traditionally been in the treatymaking field. I think it was quite clear when Mr. Finch testified that objections pass out of the consideration.

I do not have any particular questions because I am sure Mr. -riman will insist on his point of view as he did at the last hearing. But our position is that none of these matters are covered by this *tion 2.

The CHAIRMAN. Will you proceed, Mr. Perlman?

Mr. PERLMAN. I want to call attention to certain facts. I may have done it in this statement and if I have not, I will later. This is what I wanted to do and we happened to arrive at that point in the statement.

Senator DIRKSEN. Would you like to have a question at this point? Mr. PERLMAN. No, let me proceed, if you do not mind, Senator.

I call this committee's attention, and it is especially interesting in view of Mr. Holman's statement, to the report on this proposed article made within the past few days to the house of delegates of the American Bar Association by the Section of International and Comparative Law. The report was presented by Chief Judge John J. Parker of the Circuit Court of Appeals for the Fourth Circuit, one of the most eminent legal scholars in the Nation, who is regarded as one of our finest judges. I believe that the Section of International and Comparative Law of the American Bar Association has in excess of 1,000 members. The report is critical of each section of the proposed article, and enumerates other ambiguities in section 2.

May I at this point read what that report said with respect to section 2 [Reading:]

Ambiguities

Senator KEFAUVER. Mr. Chairman, is Judge Parker's report in the record!

The CHAIRMAN, He is putting it in right now.

Mr. PERLMAN, I am going to ask permission to put the whole report in.

Ambiguities. Even if there were determined to be no fundamental objections to these proposed restrictions on the treatymaking power, the new draft should be clarified in certain respects, including:

1. Sections 1 and 2, what is meant by any right "enumerated" in the Constitution? For example, are rights under the due-process clause of the fourteenth amendment enumerated? In attempting to restate in the Constitution the generally accepted rule that treaties are subject to the Constiution, the risk is thus run of narrowing the rule. That is certainly not to be desired.

2. tu view of the specific reference in section 2 to "rights of citizens of the United States," does section 1 relate to rights of citizens and aliens? Does it relate to citizens outside of the United States? If it does, the usual treaties which provide for reciprocal nondiscrimination against citizens or one country when in another would be invalid in certain cases.

3. In section 2. what is the meaning of "any other matter essentially within the domestic jurisdiction of the United States"?

Mr. Smirney, Mr. Perlman, have you ever heard of that phrase before?

Mr. PERUMAN. Yes, sir, it is in the Charter of the United Nations. Mr. Sutrusy. Did these same people ask any questions concerning the meaning of it at the time it was placed in the United Nations Charterf

Mr. PERIAAN. I do not know. It certainly was not before this committee. It is in their proposed amendment to the Constitution of the United States, which is a very different matter. It becomes pertinont here. I just call your attention to the fact that there is not any attempt in this report, Mr. Chairman, to answer that quesion, but it is stated as one that the committee should answer or at leastThe CHAIRMAN. Have you this report?

Mr. PERIMAN. Yes, sir.

The CHAIRMAN. Let the record show it is filed in its entirety.

(The reported referred to follows:)

REPORT OF THE SECTION OF INTERNATIONAL AND COMPARATIVE LAW OF THE HOUSE OF DELEGATES ON SENATE JOINT RESOLUTION 1 (83:1) (THE BRICKER AMENDMENT)

(No recommendation)

INTRODUCTION

Senate Joint Resolution 1, a copy of which is attached, was offered in the Senate on January 7, 1953, to amend the Federal Constitution (a) to restrict the treaty making power, and (b) to restrict, or perhaps eliminate, the separate power of the President to make executive or other international agreements.

In February 1952, Senator Bricker had introduced Senate Joint Resolution 130 (2:2) for the same purposes. A few weeks later the house of delegates, over the opposition of this section, adopted a substantially different proposal, which had been made by the committee on peace and law through United Nations, to mit only the treatymaking power. In September 1952, the House of delegates, again over the opposition of this section, adopted a proposal by the same committee to restrict the use of executive agreements but differing from the portions of the 1952 Bricker proposal (S. J. Res. 130) dealing with executive agreements. A subcommittee of the Senate Judiciary Committee now has before it Senate Joint Resolution 1 (83:1), the new proposal by Senator Brickler which is briefly described above. While embracing the same subject matter and having the same objectives as Senate Joint Resolution 130 (82:2), it is very different not only from Senate Joint Resolution 130 but also from the two proposals by the house of delegates in 1952, and the section believes that, especially in view of the past interest shown by the house in this subject, it should report to the house on this new approach even though no recommendation is being made at this time.

II. THE RESTRICTIONS ON THE TREATYMAKING POWER

These restrictions are in sections 1, 2, and 3 of Senate Joint Resolution 1 which read as follows:

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

"SEC. 2. No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the Tnited States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States. "SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress."

Although a year of debate, writings and hearings has resulted in substantially better draftsmanship, the foregoing proposed restrictions are still subject to two fundamental objections and still contain serious ambiguities.

Fundamental objections.—Section 3 leaves the principle of Missouri v. Holland 22 U. S. 416 (1920)) untouched because it would permit a treaty to authorize legislation otherwise unconstitutional as within exclusively State jurisdiction. This is contrary to the effect of the proposal adopted by the house of delegates ast February, but is in accord with Senate Joint Resolution 130 and with the position taken by this section at that time. However, section 3 still contemplates at a treaty which would by its terms be "effective as internal law" could become only if supplemented by an appropriate act of Congress. This would prevent azy treaty from becoming self-executing as "internal law," and, in a large and al area of treaty-making (i. e., the conventional treaties of friendship, come, and navigation provided for nondiscriminatory treatment of our citizens abroad and aliens while here, tax treaties, etc.) might embarrass our GovernLet in the negotiation of treaties with other countries. In view of the wellbeognized power of Congress to supersede a treaty's internal effect by subsequent ezslation and, especially, in view of the Senate's historic reluctance to ratify tes without extremely critical analysis, it is not understood why the burdens four Government in dealing with foreign nations should be thus increased. The rent Senate is, in fact, certain to act on proposed treaties very cautiously. The second fundamental objection lies in section 2. Is it really desirable prohibit, by constitutional amendment, any treaty that provides for arbitraby an international organization of "any*** matter essentially within domestic jurisdiction of the United States"? Under the Convention on

Peruachan Widmanna, signed at Chicago in 1944 (61 Stat. 1180), which Gang will meational flights and aviation services and practices, cersus te steget to decision by international bodies (Sutherland op. cit. Vicżecz analyzing any particular aspect of that convention, PINee v zeehibit, by constitutional amendment, any treaty that Varas Sud a jer seď? If such an amendment were adopted, just how do we WONAL WITH venga eventries, under law, disputes or differences with regard MACHZELL HETÕLens of international communications, transportation, fishCaled de 3s in order to get exclusive jurisdiction of our Armed u i rreight cuzzzy, we should, it would seem, be in a position to grant uniṣuncedɑ ɔver its troops in the United States. But is not this latter MACHT ESSENca y within the domestic jurisdiction of the United States"? Even if there were determined to be no fundamental objections iluse pupusei metiens on the treaty-making power, the new draft should dildi cu respects, including—

*hoes and 2 what is meant by any right "enumerated" in the ConstituSoe Haarpie, are rights under the due-process clause of the fourteenth emittet addices d' In attempting to restate in the Constitution the gencom semper le Dat treaties are subject to the Constitution, the risk is thus Andrew De rule. That is certainly not to be desired.

In view of de specific reference in section 2 to "rights of citizens of the 14.0d $28.es with a the United States," does section 1 relate to rights of citizens Does it relate to citizens outside of the Unied States? If it does, de usudi redites which provide for reciprocal nondiscrimination against citizens Pae ceuttery when in another would be invalid in certain cases.

& in sceen 2, what is the meaning of "any other matter essentially within the demicsite Upisi cc on of the United States"?

& in wonen & what does “effective as internal law" mean? If, pursuant to DOT execuore agreement) the United States and Great Britain agreed sua sievaade of a third country and an American steamship company asserted de xocade as a defense in a court in the United States for nonperformance a contract, wou'd the defense be unavailable if the treaty (or executive 4tremem) had not been supplemented by act of Congress?

HIL KASCUTIVE AND OTHER AGREEMENTS MADE BY THE PRESIDENT Section 4 of Senate Joint Resolution 1 deals with such agreements as follows: Section & All executive or other agreements between the President and any international organization, foreign power, or official thereof, shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this article."

the last sentence makes sections 1, 2, and 3, discussed above, applicable to execufive agreements as well as treaties.

As stated to the House both in February and Sepember of last year, this secfion has been seriously concerned over the extent to which Presidents have on some occasions tixed long-term national policy by secret executive agreements. The section has been trying to determine whether there is a practicable and realistic way of controlling the President's power to make such agreements. The section opposed the proposal adopted by the House in September because it did not and it satisfactory, and neither Senate Joint Resolution 130 in the last Congress nor Senate Joint Resolution 1 in this one appears acceptable. The problem is extremely complicated and deserves further study.

It should be recalled that the large majority of agreements between the President and foreign powers or international organizations that are not in the form of treaties, and ratified by the Senate as such, are, under existing practice, either pursuant to act of Congress or subsequently approved by Congress. These are called "statutory executive agreements" for the purpose of this report. The relatively small number of such agreements in which Congress now plays no part are the ones which have created concern. To keep this small category in focus, such executive agreements are herein called "nonstatutory executive agreements."

The practical difficulty in limiting the President's power to make nonstatutory executive agreements is that someone in our Government must have the power to deal with foreign nations quickly or secretly when, on occasion, such action is necessary. It is understood that most nonstatutory executive agreements have been made either under such circumstances or in connection with so trivial a matter that reference to Congress would be absurd.