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powers of the Nation, ny of treaties, and the a founding of the Repub
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* Joint Resolution 1 do not
sal which was abandoned. ssance, it would introduce the r relations, would limit in se executive departments to
Taate, and would nullify the -cts and interpretations built pe courts over the long period
stified by the States. e I would invalidate any provores any right enumerated in
intended to assert the suprem- it is unnecessary, because the
w is and always has been. If, - have some meaning other than rhes from time to time, as con
Bof treaties may arise, to discover - ore Constitution, and just how or fated by a provision of a treaty. existence of private or even public i and isolated from any relation
rical or social status of the Nation its with other sovereign powers.
ition 1 contains restrictions on the a to be in derogation of the author
on as one of the sovereign powers of the character which a despotic soverse country, but certainly no such proconstitution of the United States. It
re to ti
en any foreign power or any international
nr adjudicate rights of citizens of the United Gimnamerated in this Constitution or any other
estic jurisdiction of the United States. Home part of the Constitution, would imme
s rould not prohibit it entirely—on the antes to enter into international engagements
of atomic energy, for general disarmament, Caugh which wars may be outlawed and pre
ring peace--may some day shower its bless. These goals, if and when reached, will require inspection. It was on that very point that vif atomic energy for peaceful purposes failed. inkated international inspection as an imperaway that there would be no violations of disarma
cent terms and conditions, but the Soviet Union objected, and the effort had to be postponed. If the time is ever ripe again to confer uch a boon on all the peoples of the world, the United States would
a 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 contlict 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 i. But that is not the sole objection, although it may be by far the most important. The section would prohibit par
cipation by the United States in international control or inspection der treaties to limit the production, manufacture, and use of narities. Then, too, the section may operate to interfere with the effec* ve enforcement of international measures against white slavery, and it may adversely affect measures for the extradition of criminals.
It is hardly necessary to point out to the members of this comaittee that the language through which the prohibition against the -Tercise by foreign powers and international organizations of authorTorer 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 se lnited States of citizens within the States. And as others have ndicated, if it applies to citizens outside of the United States, treaties for reciprocal nondiscriminatory treatment would be invalid in some stances.
The ('HAIRMAN. Mr. Holman is here from the American Bar Assoation. I would like to have you ask some questions on this section If you would. Jr. PERLMAN. May I finish this statement, please? The CHAIRMAN. Before you go further, I would like to have him ask the questions.
Jr. HOLMAN. Mr. Chairman, Mr. Perlman and I have never agreed many matter of law that I know of, and would not now.
But as I derstand section 2, which is drawn differently from the American Bir section, it does apply and is intended to apply exactly as he states ere: hin the United States, solely to the rights of citizens within the United ain, and within the States. Tifre is no intention on Senator Bricker's part, as I understand it, "at it would apply to citizens outside the United States. The matter
narcotics and atomic energy has traditionally been in the treatyking field. I think it was quite clear when Mr. Finch testified that 're objections pass out of the consideration.
I do not have any particular questions because I am sure Mr. Priman will insist on his point of view as he did at the last hearing. 5.t our position is that none of these matters are covered by this *ton 2. Tise CHAIRMAN. Will you proceed, Mr. Perlman?
Mr. PERLMAX. 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 Dirksex. 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 (Reading:] Imbiguities Senator REFAUVER. Mr. Chairman, is Judge Parker's report in the On The CWMAN. He is putting it in right now.
Mi PERLIN, I am going to ask permission to put the whole report in.
Ambiguaties. Hien if there were determined to be no fundamental objections to these porn sex restrictions on the treatymaking power, the new draft should be clarities in certain respects, including:
1. Sentions and what is meant by any right "enumerated" in the Constitution! For times are rights under the due-process clause of the fourteenth
del pellet ately In attempting to restate in the Constitution the Aener *pert rules that treaties are subject to the Constiution, the risk is thus run a twing the rule. That is certainly not to be desired.
Review the y*vitie reference in section 2 to "rights of citizens of the l'ited State," heition 1 relate to rights of citizens and aliens? Does it it on t'***** otside of the United States? If it does, the usual treaties which isden for vipal nondiscrimination against citizens or one country When in either invalid in certain cases.
lle ********** hat is the meaning of “any other matter essentially within the clear turistic of the United States"?
Ne Shtet. Nr: Perlman, have you ever heard of that phrase bf
ME TEA Yo sir, it is in the Charter of the United Nations.
Mi Surinary Did these same people ask any questions concerning the meaning of it at the time it was placed in the United Nations
Me: Itu Indes mor know. It certainly was not before this committees Ii is neheir proposed amendment to the Constitution of the I'mtesi Sains, which is a very different matter. It becomes pertinent here I use all your attention to the fact that there is not any attempo in this propery, Mr. Chairman, to answer that quesion, but it is starteris on see how the committee should answer or at least
The (HRMANI you this report?
(The reported referred to follows:)
REPOET OF THE SECTION OF INTERNATIONAL AND COMPARATIVE LAW OF THE HOUSE OF DEI EGATES ON SENATE JOINT RESOLUTION 1 (83:1) (THE BRICKER AMENDMENT)
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 Pratymaking 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 bad 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 on the 1932 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 pribed above. While embracing the same subject matter and having the same mbjectives as Senate Joint Resolution 130 (82:2), it is very different not only frim Senate Joint Resolution 130 but also from the two proposals by the house of delegates in 19.32, 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 Dit 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:
- SEXTION 1. A provision of a treaty which denies or abridges any right enume. rated in this Constitution shall not be of any force or effect.
“SEC. 2. No treaty shall authorize or permit any foreign power or any interna*onal organization to supervise, control, or adjudicate rights of citizens of the Fata States within the Cnited States enumerated in this Constitution or any aber matter essentially within the domestic jurisdiction of the United States.
"SEC. 3. A treaty shall become effective as internal law in the United States Is through the enactment of appropriate legislation by the Congress."
Although a year of debate, writings and hearings has resulted in substantially beter draftsmanship, the foregoing proposed restrictions are still subject to two 17 damental objections and still contain serious ambiguities.
Pundamental objections.-Section 3 leaves the principle of Missouri v. Holland 22 V. S. 416 (1920)) untouched because it would permit a treaty to authorize *slation otherwise unconstitutional as within exclusively State jurisdiction. This is contrary to the effect of the proposal adopted by the house of delegates * February, but is in accord with Senate Joint Resolution 130 and with the nition 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 has only if supplemented by an appropriate act of Congress. This would prevent -5 treaty from becoming self-executing as “internal law," and, in a large and zal area of treaty-making (i. e., the conventional treaties of friendship, comsy. and navigation provided for nondiscriminatory treatment of our citizens Ponad and aliens while here, tax treaties, etc.) might embarrass our Govern
t in the negotiation of treaties with other countries. In view of the wellSized power of Congress to supersede a treaty's internal effect by subsequent sation and, especially, in view of the Senate's historic reluctance to ratify mate
et es without extremely critical analysis, it is not understood why the burdens
* Government in dealing with foreign nations should be thus increased. The Tant Senate is, in fact, certain to act on proposed treaties very cautiously. The second fundamental objection lies in section 2. Is it really desirable porvohibit, by constitutional amendment, any treaty that provides for arbitra• by an international organization of “any * * * matter essentially within domestic jurisdiction of the United States"? Under the Convention on
12.4, signed at Chicago in 1944 (61 Stat. 1180), which Wagonal flights and aviation services and practices, cerUzros decision by international bodies (Sutherland op. cit.
T analyzing any particular aspect of that convention,
meie probibit, by constitutional amendment, any treaty that want it s'a' If such an amendment were adopted, just how do we " Widt in eo eetries. under law, disputes or differences with regard **** e Diem v international communications, transportation, fish
Lau in order to get exclusive jurisdiction of our Armed preg Vaty, we should, it would seem, be in a position to grant
untutais troops in the United States. But is not this latter Plavac v Win the domestic jurisdiction of the United States"?
30 kere were determined to be no fundamental objections wa Yes on the treaty-making power, the new draft should
a cauris, including" *****Ni wext is meant by any right "enumerated” in the Constitu
sa Isyut any rights under the due-process clause of the fourteenth nadal will inte de validerin' In attempting to restate in the Constitution the genna iba a K***ai neities are subject to the Constitution, the risk is thus AMMA ***** It true. That is certainly not to be desired.
levene reference in section 2 to “rights of citizens of the I now Nail United States," does section 1 relate to rights of citizens
Leiriate to citizens outside of the Unied States? If it does, the world text 4* nad proride for reciprocal nondiscrimination against citizens
*** ***** stither would be invalid in certain cases. hinderet; it is the meaning of “any other matter essentially within the facit inte va in the l'nited States"?
de in vita is uttet demis "effective as internal law” mean? If, pursuant to lead roletur **n**ment) the United States and Great Britain agreed
me a deveniri country and an American steamship company asserted ile teen buiten veneuse in a court in the United States for nonperformance
ki, were the defense be unavailable if the treaty (or executive SER'UTI had the pepe supplemented by act of Congress?
111. kat PE AND OTHER AGREEMENTS MADE BY THE PRESIDENT Neu State Joint Resolution 1 deals with such agreements as follows:
he wou de dil tekutive or other agreements between the President and any Text Lonal organization, foreign power, or official thereof, shall be made only all the manner and to the extent to be prescribed by law. Such agreements shall De wenset in the limitations imposed on treaties, or the making of treaties, by thréttle" the last sentence makes sections 1, 2, and 3, discussed above, applicable to executilasreements as well as treaties.
in sladded to the House both in February and Sepember of last year, this sec1102 has been seriously concerned over the extent to which Presidents have on women orientous tives long-term national policy by secret executive agreements. then perion has been trying to determine whether there is a practicable and Textlister way of controlling the President's power to make such agreements. The nextion opposed the proposal adopted by the House in September because it Wil noi tind it satisfactory, and neither Senate Joint Resolution 130 in the last (wites mor Senate Joint Resolution 1 in this one appears acceptable. The probleeu is extremely complicated and deserves further study.
It should be realed that the large majority of agreements between the President and foreisn powers or international organizations that are not in the form of trevation and ratitied 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 prev'utive 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.