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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.

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By way of brief comment on the text, no objection has been offered to the fi 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 effectiv as an international obligation upon ratification, does not become domestic la unless and until made so by parliamentary action (see American Bar AssociN tion Journal, September 1952, pp. 794, 795; ibid., June 1952, pp. 468, 469; Reposa of Committee 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 rekla ferred to as the "which clause." That clause provides that implementing legiNYI lation by Congress intended to make treaties effective as internal law must be legislation by Congress "which it could enact under its delegated powers in th 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 Co gress can enact legislation to implement the treaty which it would not have powe to enact in the absence of a treaty, and thus enter a field normally reserved t the States. That decision makes possible the complete upsetting of the constitu 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 would be that even if a treaty deals with an appropriate subjec 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 of 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 Lav do business or own or inherit land, with reciprocal rights for our citizen abroad" (p. 12).

The objection is founded upon the untenable assumption that the President on t 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 sub by express grant in the first part of the Constitution vested "all legislative kota. power." This notion flies in the face of Jefferson's concept, expressed in his Repch Manual of Parliamentary Practice as follows:

"By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaties, and cannot be otherwise regulated.

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"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-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 thir beginning of the Republic. They have been identified particularly with the Mack treaty-making powers because treaties are usually the form in which reciprocal agreements between nations are made. To urge that Congress is incapable of exercising its constitutional power to regulate commerce with foreign nations,


and that such regulation cannot be had except through the exercise of the treaty Hollo

making power constitutes a confusion of constiutional power; it creates limita-States 1 tions upon congressional power in the interest of enlarging the treaty power. enact

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

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cate, the consent of the several States must be appropriately obtained; -1 is the case, for example, in Canada, which is also a federal state.

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Bar Association Journal, September 1952, p. 794; ibid., June 1952, who object to the so-called which clause in the American Bar Associatreaty proposal fail to appreciate the real significance of this clause to the ration of our form of government against the abuse of the treaty power, in the type of agreements which the executive arm of the Governhas been negotiating in the last few years in the name of human rights * £other areas. Without such a constitutional limitation, and within the * State Department concept that "there is no longer any real distinction domestic' and 'foreign' affairs" (see American Bar Association Journal, *enter 1952, p. 737, the President and two-thirds of the Senators present take over the entire area of internal law now reserved to the States. Sprters of the association's amendment have been challenged to point ratified treaty raising questions that show the need for a constitutional on the treaty-making power. The only treaty which has actually rained is the United Nations Charter itself, which has undoubtedly, uney mouri v. Holland already conferred on Congress the unlimited power to - by legislation treaties on all matters, including individual rights, by that instrument" (American Bar Association Journal, September emmittee has for several years given constant and serious study as to steffective means of dealing with these real and potential extensions of Paty-making power. After considering all alternatives, it concluded that 2 sure safeguard against present and future risk is a constitutional amendwhich while preserving the treaty-making power in all its effectiveness Latters which are genuine subjects of international agreement, will close the such distortions as those just mentioned. The house of delegates agreed. date almost no objection has been voiced to the second section, designed ake it clear and unequivocal that Congress has the power "to make all wh shall be necessary and proper" to control executive agreements turion, art. I, sec. 8, cl. 18; Youngstown Sheet & Tube Co. v. Sawyer, 8 579 (June 2, 1952); Ex parte Quirin, 317 U. S. 1, 25-27, 29; Report termittee on Peace and Law, September 1, 1952). Congress and the public animous that Executive agreements should be controlled by law within

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Abering has been set on treaties and Executive agreements commencing • mary 18, 1952, before a subcommittee of the Judiciary Committee of the Mates Senate. The subcommittee consists of Senator William Langer, an, of North Dakota, chairman; Everett M. Dirksen, Republican of :: John M. Butler, Republican, of Maryland; Estes Kefauver, Democrat, eve; and Harley M. Kilgore, Democrat, of West Virginia. Having cuted by the Senate subcommittee, members of the committee on peace 1. by authorization of a committee of the board of governors pursuant lation of the house of delegates on September 20, 1951, will appear The base of delegates will be kept advised with regard to further developments. A-NEW YORK STATE BAR ASSOCIATION COMMITTEE ON AMENDMENTS TO THE FEDERAL CONSTITUTION

D. Mitchell, chairman; John W. Davis; Lewis R. Gulick; John J.
Mackrell; Harrison Tweed)


at case [Missouri v. Holland, 252 U. S. 416] thus established the principle when the United States makes a treaty on a subject within the treaty the Congress can enact legislation to implement the treaty which it Bot have power to enact in the absence of a treaty, and thus enter a ymally reserved to the States" (p. 4).

**he Covenant on Human Rights deals 'with an appropriate subject of maton al agreement' and is thus within the treaty power, the rule announced "Farers v. Holland would operate to give the Congress power to implement at by legislation which it could not enact in the absence of a treaty enter a field heretofore reserved to the States" (p. 5).

"If it is within the treaty power and would be valid as a treaty, then unde 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, and 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:

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"(a) With respect to any articles of this covenant which are determined i accordance with the constitutional processes of that state to be appropriate i whole or in part for federal action, the obligations of the federal governmen shall to this extent be the same as those of parties which are not federal states "(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 fo action by the constituent states, provinces, or cantons, the federal govern ment shall bring such articles, with favorable recommendation, to the notice Plan of the appropriate authorities of the states, provinces, or cantons at the earlies possible moment.'

"If such a treaty as the Covenant on Human Rights is within the treaty 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 within the States to put the covenant into effect. That obviously would be accomplished "in accordance with the constitutional processes' of the United States. It would be a result consistent with our Constitution, as already determined in Missour v. Holland. Consequently Congress would in accordance with our constitutionalat is processes, have full power, and subdivision (b) dealing with favorable recom mendations 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 a Federal Government assumes no obligation to enact legislation which it could hers 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 gain power to fully implement the covenant although under no international obligation to do so.


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"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?" Amer (p. 8-10).





"An argument can be made that if people are well treated by their own gov-. ernments 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 its own citizens is thus of interest to all and is therefore an appropriate subject of 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 addre sustain the validity of the treaty, although that is far from certain. Considering miat

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

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e Court would hold that the Covenant on Human Rights is not within treaty power.

wold be unfortunate, if we sign such a treaty, to have our courts hold that as the United States is concerned the treaty is void. It would be more unzate if the courts should sustain the treaty, with the result that the Conof the United States could then take over the entire field of human rights has completely upset the normal division of power between Nation and We should not become a party to a treaty which purports to bind this to enact legislation applicable to our own citizens to establish within its ters the principles dealt with in the Covenant on Human Rights.

s such as the Covenant on Human Rights outside the normal field of Tatjana, greements and which can be used as a device to enlarge the powers Federal Government and diminish those of the States should be opposed t within the treaty power ***" (pp. 15–16).

- prin iple announced in Missouri v. Holland has a logical ground and is +xpress constitutional provisions. As applied to treaties normally the treaty power it is satisfactory enough, but if it is to be applied to such as the Covenant on Human Rights it would be destructive of the existing authority between States and Nation. In that case, to enlarge Federal ad that would be necessary would be for us to find some foreign nation to make an agreement with us as to how we would treat our own people. set a distortion of the treaty power should be condemned as a mere device age Federal power at the expense of the States and not within the treaty


representatives in the United Nations ought not to have gone as far as Late in the negotiation for such a treaty. They should now direct their to converting the Covenant on Human Rights from a treaty pledging legisfr immediate adoption of all its provisions, into a document which as to no more than a declaration of approved principles, in the form of endations to the several nations (pp. 17-18).

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Mr. SCHWEPPE. That is a report which will be read to the house egates in Chicago commencing next Monday.

Efore proceeding to a discussion, I should like to express the

lation of members of the committee on peace and law and of members of the American Bar Association for the recognition Stor Bricker on February 7, 1952, when he introduced Senate Resolution 130 (see Congressional Record, February 7, 1952,

92), and again today of the pioneer work done on this subby the committee on peace and law and other members of the rean Bar Association, and particularly of Frank E. Holman, sident of the American Bar Association.

Ya have before you today for consideration the text of Senate -Resolution 1, Senator Bricker's proposed constitutional amenddealing with both treaties and executive agreements and other Deals on the same subject.

Mr. John Foster Dulles, now Secretary of State, before the real meeting, American Bar Association, Louisville, Ky., April 142, made an address entitled "The Negotiation of Treaties" 4can Bar Association Journal, June 1952, p. 487). In the of this address he made the following remarks:

treaty-making power is an extraordinary power liable to abuse. Treaties Iternational law and also they make domestic law. Under our Contreaties become the supreme law of the land. They are indeed more than ordinary laws, for congressional laws are invalid if they do not

de Twed 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 this 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 4 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 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 furnishe the background for both that text and the text of Senate Joint Resolution 1.

The text submitted for your consideration by the house of delegates 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 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.

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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 that would have been unconstitutional in the absence of the treaty out powers, that once a treaty was made on the subject an act of Congress

became constitutional by virtue of that clause in article I of the Constitution 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.





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