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Because the final text of any proposed constitutional amendment will drawn by the Judiciary Committees of Congress, your committee is not reco mending any text changes to the house of delegates.
By way of brief comment on the text, no objection has been offered to the fijzin sentence rendering void all treaties in conflict with the Constitution, except th such a statement is “unobjectionable in itself but unnecessary” (Zechari: Chafee, Jr., Harvard Law School Record, February 21, 1952; see American B. Association Journal, September 1952, p. 794). Nor has much substantial oppo tion been expressed to the first clause of the second sentence which renders : treaties non-self-executing until Congress acts by implementing legislation, th putting the United States in this respect on a parity with the great majority nations. In virtually all of the countries of the world a treaty, while effectie as an international obligation upon ratification, does not become domestic la unless and until made so by parliamentary action (see American Bar Associ" B tion Journal, September 1952, pp. 794, 795; ibid., June 1952, pp. 468, 469; Repo of Oommittee on Peace and Law, September 1, 1950).
The principal attack on the treaty amendment recommended by the America Bar Association centers on the last clause of the second sentence, usually r ferred to as the "which clause.” That clause provides that implementing legi Na lation by Congress intended to make treaties effective as internal law must I legislation by Congress "which it could enact under its delegated powers in tl absence of treaty." The "which clause" is intended to set aside the rule « Missouri v. Holland (252 U. S. 416), which establishes the principle that whe the United States makes a treaty on a subject within the treaty power, the Coi gress can enact legislation to implement the treaty which it would not have powe dla to enact in the absence of a treaty, and thus enter a field normally reserved the States. That decision makes possible the complete upsetting of the constiti tional balance between Federal and State power through the exercise of th treaty power by the President and two-thirds of the Senators present (America Bar Association Journal, September 1952, p. 795). The objection to the Amer can Bar Association draft was stated in the committee report to the New Yor State Bar Association above referred to, as follows:
“The result wou be that even if a treaty deals with an appropriate subjec tfal For of international agreement, the Congress would have no power to implement i or make it effective in the United States, unless the subject matter were one oi which Congress could legislate in the absence of a treaty” (p. 12).
Among the examples mentioned in the report are “treaties giving the right to los do business or own or inherit land, with reciprocal rights for our citizen: Cheative abroad” (p. 12).
The objection is founded upon the untenable assumption that the Presiden i gn and the Senate acting as the treaty-making power have broader legislative power over the people of the United States than the Congress itself, in which the people the sot by express grant in the first part of the Constitution vested "all legislative lica, power.” This notion flies in the face of Jefferson's concept, expressed in his Manual of Parliamentary Practice as follows:
"By the general power to make treaties, the Constitution must have intended to sn! to comprehend only those objects which are usually regulated by treaties, and-janie a cannot be otherwise regulated.
"It must have meant to except out all those rights reserved to the States; for surely the President and the Senate cannot do by treaty what the whole Govern- 12l be ment is interdicted from doing in any way.” (Italics supplied.) (Quoted from American Bar Association Journal, September 1952, p. 736.)
So far as concerns the specific objection respecting aliens in this country, in return for reciprocal rights for our citizens abroad, such concessions have been a well-established part of the commercial policy of the United States from the air beginning of the Republic. They have been identified particularly with the Mación treaty-making powers because treaties are usually the form in which reciprocal, agreements between nations are made. To urge that Congress is incapable of and that such regulation cannot be had except through the exercise of the treaty wat . Bolo exercising its constitutional power to regulate commerce with foreign nations, making power constitutes a confusion of constiutional power; it creates limita de Sales tions upon congressional power in the interest of enlarging the treaty power. hac By virtue of its power to regulate foreign commerce, to define and punish offenses against the law of nations, to declare war, etc., the Congress now has delegated power to legislate with respect to all of the important subjects in the legitimate treaty field. (See American Bar Association Journal, June 1952, p. 470.) Insofar as Congress does not have power under the Constitution to
u vold og thingwhich entore
le the consent of the several States must be appropriately obtained ;
bene, for example, in Canada, which is also a federal state. (See I Bar Association Journal, September 1952, p. 794; ibid., June 1952,
who object to the so-called which clause in the American Bar Associa
at proposal fail to appreciate the real significance of this clause to the Fatin of our form of government against the abuse of the treaty power, - in the type of agreements which the executive arm of the Govern
* 5 been negotiating in the last few years in the name of human rights *Her areas. Without such a constitutional limitation, and within the
Sute I)epartment concept that “there is no longer any real distinction
destic' and 'foreign affairs" (see American Bar Association Journal, Over 1972, p. 737, the President and two-thirds of the Senators present - 25e over the entire area of internal law now reserved to the States. Sitters of the association's amendment have been challenged to point
Titud treaty raising questions that show the need for a constitutional So the treaty-making power. The only treaty which has actually
and is the United Nations Charter itself, which has undoubtedly, un
V sri 1. Holland already conferred on Congress the unlimited power to =-=-*: by legislation treaties on all matters, including individual rights, shi bos that instrument” (American Bar Association Journal, September
mittee has for several years given constant and serious study as to %3fhtire means of dealing with these real and potential extensions of
2-making power. After considering all alternatives, it concluded that 45x2re safeguard against present and future risk is a constitutional amendurb while preserving the treaty-making power in all its effectiveness ****hich are genuine subjects of international agreement, will close the exh distortions as those just mentioned. The house of delegates agreed.
a.most no objection has been voiced to the second section, designed • 2- it clear and unequivocal that Congress has the power “to make all 19. b shall be necessary and proper" to co rol executive agreements
L1, art. I, sec. 8, cl. 18; Youngstown Sheet & Tube Co. v. Sawyer,
Jiy (June 2, 1952); Ex parte Quirin, 317 U. S. 1, 25–27, 29; Report CIL**** on Peace and Law, September 1, 1952). Congress and the public > Dous that Executive agreements should be controlled by law within
* has been set on treaties and Executive agreements commencing RT IS, 1952, before a subcommittee of the Judiciary Committee of the Des Senate. The subcommittee consists of Senator William Langer,
2", of North Dakota, chairman; Everett M. Dirksen, Republican of - dha J. Butler, Republican, of Maryland ; Estes Kefauver, Democrat, ini and Harley M. Kilgore, Democrat, of West Virginia. Having
* by the Senate subcommittee, members of the committee on peace 13. be authorization of a committee of the board of governors pursuant
mation of the house of delegates on September 20, 1951, will appear be of delegates will be kept advised with regard to further developments. A-Xew York State BAR ASSOCIATION COMMITTEE ON AMENDMENTS
TO THE FEDERAL CONSTITUTION
Mackrell; Harrison Tweed)
TEE MAKING OF TREATIES AND THEIR EFFECT, PRESENTED JUNE 1952
a case Missouri v. Holland, 252 U. S. 416] thus established the principle ** «g the United States makes a treaty on a subject within the treaty
the Congress can enact legislation to implement the treaty which it Share power to enact in the absence of a treaty, and thus enter a
ya!!y reserved to the States” (p. 4). "***rotenant on Human Rights deals 'with an appropriate subject of sa mga bal agreement and is thus within the treaty power, the rule announced : - *. Holland would operate to give the Congress power to implement at by legislation which it could not enact in the absence of a treaty
eter a field heretofore reserved to the States” (p. 5).
"If it is within the treaty power and would be valid as a treaty, then und der the rule of Missouri v. Holland the power of Congress to enact legislation ( the subject of civil rights would be substantially enlarged and such limits C that power as now exist would disappear. Such a result would cause seriou dissension within the United States between the advocates of States' rights, ar those who desire increase in the centralized power of the Federal Governmen We would gain nothing by the Human Rights Convention which justifies us i precipitating such dissension in the United States. Measures in support ( civil rights are already more fully developed in the United States than in an other nation, unless it be in the British Commonwealth of Nations.
"On the other hand, many of the other nations involved have not reache a stage of political or social development where it is practical for them at on stroke to put into effect all the utopian measures specified in the Covenant o Human Rights. In many cases, to do so would require fundamental change in their forms of government. In any view, becoming a party to the covenar would make us a target for charges and complaints by nations which are lookin for a chance to make trouble for United States.
“These difficulties cannot be overcome by inserting in the covenant any claus applicable to federal states such as has been proposed by our State Departmen That clause (art. 43 on federal states) is as follows:
“*(a) With respect to any articles of this covenant which are determined i accordance with the constitutional processes of that state to be appropriate ia whole or in part for federal action, the obligations of the federal governmen - 'tunt shall to this extent be the same as those of parties which are not federal states **** TL
“'(b) With respect to articles which are determined in accordance with th constitutional processes of that state to be appropriate in whole or in part foto action by the constituent states, provinces, or cantons, the federal govern ment shall bring such articles, with favorable recommendation, to the noticia of the appropriate authorities of the states, provinces, or cantons at the earliestip possible moment.'
"If such a treaty as the Covenant on Human Rights is within the treaty upra making power, then under our Constitution and the decisions of our Supreme Court the effect of our becoming a party to the covenant would be to give the Congress of the United States full power to enact legislation effective withir the States to put the covenant into effect. That obviously would be accomplished ‘in accordance with the constitutional processes' of the United States. It woulc be a result consistent with our Constitution, as already determined in Missour v. Holland. Consequently Congress would in accordance with our constitutional. That is processes, have full power, and subdivision (b) dealing with favorable recommendations to the States would be inoperative. If we want to put a clause in the covenant on this subject, it would have to go further and provide that the ma Federal Government assumes no obligation to enact legislation which it could forso not constitutionally enact, in the absence of the treaty. This would relieve the Federal Government from an obligation to enact Federal legislation, but even then it might be held that under the rule in Missouri v. Holland Congress would FF gain power to fully implement the covenant although under no international obligation to do so.
“It would also be unwise to attempt to hide behind our Federal system as an excuse for limitation on our obligations, which would not avail a non-federal state, with all legislative power resting in its national government. Why sign a treaty we do not approve, and then hamstring our power to enforce its terms?” Alien (p. 8–10).
"An argument can be made that if people are well treated by their own governments and are contented they are not inclined to be disorderly or break out into hostilities with other nations, and that the treatment by each nation of the its own citizens is thus of interest to all and is therefore an appropriate subject the suhof international agreement. If most of the United Nations member nations take that view and sign such a treaty, and our own Chief Executive with the assent of the Senate does likewise, it would place a heavy strain on the Supreme Court to hold that the treaty is invalid. It is possible that the Court would sildresustain the validity of the treaty, although that is far from certain. Considering the effect of such a treaty on the powers of Congress and that under the rule in Missouri v. Holland the Federal Congress, if we join in such a treaty, would have unlimited power to enact legislation on the subject effective within the States, and thus upset the normal division of power between our State and National Governments, it may well be that our courts would hesitate to hold that such a treaty is within the treaty power, and it is to be hoped that the
rezze Court would hold that the Covenant on Human Rights is not within - MIT Dwer. *** 30.1 he unfortunate, if we sign such a treaty, to have our courts hold that
"ite t'nited States is concerned the treaty is void. It would be more un- 21- if the courts should sustain the treaty, with the result that the Con
the United States could then take over the entire field of human rights *135 41mpletely upset the normal division of power between Nation and
We should not become a party to a treaty which purports to bind this Es part legislation applicable to our own citizens to establish within its
por Deiples dealt with in the Covenant on Human Rights.
rb as the Covenant on Human Rights outside the normal field of 91Tments and which can be used as a device to enlarge the powers Thiral Government and diminish those of the States should be opposed
in the treaty power * * * (pp. 15–16). 5000. iple announced in Missouri v. Holland has a logical ground and is 10+ Ipress constitutional provisions. As applied to treaties normally "Be trpaty power it is satisfactory enough, but if it is to be applied to such is the Covenant on Human Rights it would be destructive of the existing
bority between States and Nation. In that case, to enlarge Federal au hat would be necessary would be for us to find some foreign nation
make an agreement with us as to how we would treat our own people. a distortion of the treaty power should be condemned as a mere device 258e Federal power at the expense of the States and not within the treaty
Therezentatives in the United Nations ought not to have gone as far as Lip in the negotiation for such a treaty. They should now direct their ******verting the ('ovenant on Human Rights from a treaty pledging legis
rin!meliate adoption of all its provisions, into a document which
o no more than a declaration of approved principles, in the form of xolations to the several nations (pp. 17–18).
WILLIAM D. MITCHELL, Chairman.
meates in Chicago commencing next Monday. Ifore proceeding to a discussion, I should like to express the 7***ation of members of the committee on peace and law and of
members of the American Bar Association for the recognition *** Bricker on February 7, 1952, when he introduced Senate
Rolution 130 (see Congressional Record, February 7, 1952, - SSPN), and again today of the pioneer work done on this sub- by the committee on peace and law and other members of the Bran Bar Association, and particularly of Frank E. Holman,
sident of the American Bar Association. Tohase before you today for consideration the text of Senate
Resolution 1, Senator Bricker's proposed constitutional amend- maling with both treaties and executive agreements and other mirel on the same subject.
& John Foster Dulles, now Secretary of State, before the resal meeting, American Bar Association, Louisville, Ky, April
made an address entitled “The Negotiation of Treaties” riman Bar Association Journal, June 1952, p. 487). In the
of this address he made the following remarks: ats-making power is an extraordinary power liable to abuse. Treaties 15 Iternational law and also they make domestic law. Under our Con
treaties become the supreme law of the land. They are indeed more - 112n ordinary laws, for congressional laws are invalid if they do not
did not agree with some portions of the report.
conform to the Constitution, whereas treaty law can override the Constitutior Treaties, for example, can take powers away from the Congress and give ther to the President; they can take powers from the State and give them to th Federal Government or to some international body and they can cut across th rights given the people by the constitutional bill of rights.
The foregoing remarks of Mr. Dulles succinctly point up the prob lem with which your committee on peace and law has been dealing sinc 1948, and the study of which has resulted in the recommendation of our committee to the house of delegates of the American Ba Association.
Senator WATKINS. Have you talked to Mr. Dulles about this state ment he made ?
Mr. SCHWEPPE. Personally, no.
Senator WATKINS. Do you know whether or not he favors thi: resolution?
Mr. SCHWEPPE. We do not know; no.
The CHAIRMAN. Senator Watkins, I might tell you I am going to have a copy of these entire proceedings sent to Mr. Dulles as soor as the reporter can get it off. I am going to keep him informed of the testimony of every witness so that he can be constantly aware of just exactly what the testimony is.
Mr. SCHWEPPE. Before going directly to the text, I should like in first, without reading from the reports of our committee, which are! already in last year's hearing record and of which you have copies. to explain the resolution on treaties which the house of delegates has submitted for your consideration, because this resolution will furnishi the background for both that text and the text of Senate Joint 1 Resolution 1.
The text submitted for your consideration by the house of delegates as of the American Bar Association covers three main ideas. The first idea is that a provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. That pro-L vision is recommended by the committee on peace and law and by the house of delegates of the American Bar Association, because of the uncertainty that exists at the present time with reference to the extent ta of the treaty power.
It is true that the Supreme Court said, in early cases, of which Geofroy v. Riggs is commonly cited, that you cannot do under the treaty power what the Constitution forbids.
On the other hand, we have the case of Missouri v. Holland (252 U. S. 416), in which the Supreme Court held, although Congress had no power to control the subject matter under its ordinary delegated 15
that once a treaty was made on the subject an act of Congresso that would have been unconstitutional in the absence of the treaty Jone
in stitution which gives Congress the power to pass all laws necessary and
proper to carry this Constitution into effect and to carry into effect the powers delegated to any department or officer of the United States.
Mr. Justice Holmes held in that case that while article VI of the Constitution requires that the statutes be passed pursuant to the Constitution, treaties need merely to be made under the authority of the United States, which he suggests may mean no more than formal acts necessary to constitute the treaty.