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We have been engaged in this study jointly for a period of time Top Pction on international law of the American Bar Associa
Some of the members of that section do not seem to feel a consal amendment is necessary. They recognize the serious prob-- **f, of which we are all aware, and there is no difference between ea to the existence of a very far-reaching problem. The difference
tu the remedy to be adopted. Huntlemen of the international law section who do not agree 1.0.1 viewpoint were of the view that you can control this thing
ity by putting clauses in the treaties, or by making reservautraties. La committee on peace and law, supported now by the house of Sites of the American Bar Association, which is its official voice, Dont believe that there is an effective answer to the extension of - piwer over the internal affairs of the States by the treaty
We think that the appropriate remedy is a constitutional Sent which will take us over and above the language of any
that anybody can write into a treaty, or fail to get written into 1: Fas agreed between the committee—and this is very important 4:33 background for our proposal—and the section on internaEn law that, under a treaty, Congress, by virtue of article I, sec
can pass all laws necessary and proper to give effect to and ...ment treaties, even though in the absence of such a treaty Con
would not have power under the Constitution to pass such nation, and that by neither reservation or understanding can
wiwer of Congress be controlled if Congress chooses to exercise : Tv that extent we agree. We agree on the problem. We disagree to the remedy.
very great American lawyer, Henry St. George Tucker, who was z-day dean of the Law School of Washington and Lee University, E: as a former president of the American Bar Association, wrote is in 1915 which he entitled “Limitations on the Treatymaking 7777." The book was some 400 pages, and in the course of that prebe makes the famous and much-quoted statement that the treaty " of the Constitution is a Trojan horse; that is—to carry out 2 parison-it has a lot of hidden soldiers in it which leap out 31. Fou in the dark of the night when you are not expecting it.
H point about it was that a doctrine such as that of Missouri 19. Holland, under which the State Department, with the assist
of the President, negotiates a treaty and the Senate ratifies it,
is hits the various States in cases that later come up in court, Line States find out for the first time that the President and the
reby ratifying the treaty have pushed State constitutional proses and State laws out of the way, and that the matter which was
vure a matter of strictly State concern has now become a matter exciusively Federal concern, because, State constitutions and laws
- contrary notwithstanding, the treaty must prevail. That is the **n for Henry St. George Tucker's famous statement that the 1.215 clause is a Trojan horse. He is not the only one that believes i Richard Henry Lee of Virginia and Patrick Henry of Virginia
thi to the provisions concerning treaties, because they thought :*is no control on the treatymaking power. They thought there * control the way the clause is presently drawn because it says
that statutes must be pursuant to the Constitution but a treaty mere need to be made under the authority of the United States.
The importance of the problem from our standpoint becomes greater when we recognize that fact. Decades ago, and certainly at the tin the treaty clause was adopted, treaties were rather simple affair They were formal agreements between governments relating to treatissa of peace, commerce, and navigation, consular treaties; and that was atei generally speaking, the extent of it. However, in recent times, wit spect the more modern viewpoint advocated by Dr. Philip Jessup an others—and it is a viewpoint they have a perfect right to advocatuuki even though others of us do not agree with it—there has been pu into the treaty field a great deal of subject matter which heretoforid many of us thought was strictly the domestic concern of the severe countries involved. The treaty clause now carries a different implica ya tion. That is what brings us to this very serious question.
The State Department, for instance, issued an official bulletin i 1950, saying "that there is no longer any real distinction betwee domestic and foreign affairs.” If that is true, then under the treaty hain making power, any subject matter can be seized, which heretofore ha been deemed to be the exclusive concern of the several States, in thei relationship to the citizens of the several States; and, of course,
i treaties are made in those fields, State constitutional provisions ani laws will disappear to the extent that they conflict with the provision of a treay negotiated by us with 15, 20, 30, 40, or 50 other nations o the world, who may have different concepts about the particular sub ject matter that is involved in the treaty.
To show that our committee is not alone in its concern as to the extent of the treatymaking power and that we wrote the first sentence of this proposal advisedly, I would like to direct your attention to a statement made by former Chief Justice Charles Evans Hughes before the American Society of International Law in 1929, so that werfer cannot be charged with conjuring up anything about the extent of the ci treaty power. I should like to call your attention merely to these adere statements from Justice Hughes:
If we take the Constitution to mean what it says, it gives in terms to the United States the power to make treaties. It is a power that has no explicit limitation attached to it, and so far there has been no disposition to find in temno anything relating to the external concerns of the Nation the limitation to be implied.
Now there is, however, a new line of activity which has not been very noticeable in this country, but which may be in the future how propheticand this may give rise to new questions as to the extent of the treatymaking power. I have been careful in what I have said to refer to the external concerns of the Nation. I should not care to voice any opinion as to an implied limitation on the treatymaking power. The Supreme Court has expressed a doubt whether there could be any such. That is, the doubt has been expressed in one of its as late opinions. But, if there is a limitation to be implied, I should say it might be found in the nature of the treatymaking power. Then Justice Hughes goes on to say:
If we attempted to use the treatymaking powers to deal with matters which did not pertain to our external relations, but to control matters which normally and appropriately were within the local jurisdiction of the States, then I again say there might be grounds for implying a limitation upon the treatymaking power, that it is intended for the purpose of having treaties made relating to
affairs and not to make laws for the people of the United States in their 4. epucerns, through the exercise of the asserted treatymaking power. Cut is a brilliant statement, which comprehends the whole problem as presented here. Janice Hughes entertains doubts as to whether, insofar as the
is bare ruled, there is any limit to the treatymaking power. fie further issues a caveat that if the treatymaking powers should .avi to deal with subjects that heretofore have been deemed to be is of domestic concern, that they raise a serious question as to
rrient of the treatymaking power, and whether or not a limitation Biibe implied.
Ibe latter portion of Justice Hughes' statement would be rather meiring if we were not 2 years ago told by the State Department
tere is no longer any difference between domestic and foreign 2. If there is no longer any difference between domestic and
matfairs, then, of course, the treaty power can reach any domestic (nt matter, and then the possible implied limitation referred to
Jie Hughes confining the treatymaking powers to matters of Tral concern, and excluding it from matters of internal concern,
appeared from the picture. We would then have the situationI that is the thing that we fear—that under the treatymaking power, ir atject can be seized that is within the domestic concern of the
te because the State Department in 1950 expressed the belief that asmetic subject also has international implications, and therefore satt subject upon which to make a treaty.
it hat is so, under the treatymaking power, a great body of State, w.titional, and statutory law can be completely wiped out. Izve you another illustration that there is nothing fantastic about
iar which we entertain and which Justice Hughes entertained kar back as 1929, we refer in our report to the attitude of President innan Committee on Civil Rights. The President's Committee on ...Rghts, which rendered its report, I think, 2 years ago, went into
jat to a considerable extent, as to the power of Congress under --I ing constitutional powers, to pass civil-rights legislation, not*249ding it is the concept of many that civil rights is a subject :!*er that is the concern of the several States, under the 10th amend
in dealing with that particular problem as to the extent of malonal power under the Constitution, they said, and I quote: - Aman Rights Commission of the United Nations at present is working
'n national bill of rights, designed to give more specific meaning to the 592 prpriples announced in article 55 of the Charter: If this document is ****** !,5 the l’nited States as a member state, an even stronger base for
install action under the treaty power may be established. iwly that, but as late as February of this year the section on
tional and comparative law of the American Bar Association,
.in a report to the midwinter meeting of the American Bar A tion, stating that under the treatymaking power the Govern:" of the United States could agree to an international criminal * in which there was no trial by jury and in which an American * muld be taken abroad for trial without the safeguards which berian Constitution gives to him.
, it is agreed, if he were tried in this country he would be sat to and have all of the constitutional protections that the
Constitution gives to persons charged with crime, but they say, unde the treaty power we can agree to the creation of an international cour that frees us of those constitutional limitations and robs us of those constitutional rights.
In other words, it is claimed that the United States Governmen can, under the treaty power, provide for the trial of American citizen abroad for offenses committed here by methods and in places which the Constitution otherwise forbids.
That is one reason, both the Missouri against Holland doctrine, and this broad assertion as to the extent of the treatymaking power, w suggest as a first sentence, the one that I read you a little while ago that any provision of a treaty which conflicts with the Constitutioi of the United States shall be of no force and effect, because, while i has been said by the Supreme Court that you cannot do anything by treaty power when the Constitution forbids it, the situation in Missour against Holland was one where the Constitution, in the absence o treaty, did forbid the Congress from dealing with the subject matter in the sense that the power was not delegated. Not being delegated Congress was forbidden to deal with it in the absence of treaty.
However, the Court said that while Congress was forbidden to dea with it under its normal constitutional powers, once the treaty was passed on the subject, Congress then had jurisdiction to deal with it: Equally here, the point put forward about the extent of civil-right:
a legislation under the treaty power, and about the right to create ar international court for the trial of American citizens, freed of als constitutional limitations set forth in the Constitution, shows that there's is a real danger that the construction of the treaty powers now laicais down may permit something that the Constitution otherwise forbids bar
Because the courts have spoken only in forms of dicta on this ques... tion, and the courts have changed their minds in modern times many licet many times, we would like that principle firmly engrafted in the theo Constitution as a limitation to the treaty power.
The second concept that is embodied in the American Bar Associa-Chei tion proposal will have the effect of making all treaties whatsoever m non-self-executing.
I will read the first part of the second sentence for this purpose : A treaty shall become effective as internal law in the United States only through legislation by CongressThe purpose of that clause is to take the Trojan-horse element outsete of the treaty clause. Today a treaty is made. Two or three or five tha years from now the several States find out that while everybody was asleep, including probably Congress and the States, a provision was rer put in the treaty which has the effect of invalidating a State constituintitional provision or a State law. That comes about by reason of the Theme supreme-law clause in the sixth article, which makes treaties auto-treme matically domestic law. Any self-executing treaty becomes automatically domestic law once it has been ratified by the Senate of the United States, State constitutions and laws to the contrary not-'); withstanding
What this sentence does is to render all treaties non-self-executing. Read It does not limit the State Department in negotiating treaties. The State Department can go out and make a treaty in any part of the world, but the treaty does not supersede any law in this country until
? That is
155 acts. We will know exactly at what point of time there is an ut of that treaty on existing Federal and State domestic law, or this proposal. piator BUTLER. It has been contended by Mr. Perlman in his brief ** this provision that you are now discussing will create a lapse sfereignty in the Federal Government and would make it imble in those cases to make treaties. M: SCHWEPPE. I think we have effectively answered Mr. Perlman
percent in the memorandum filed with the Committee on Peace : Law, and which is the document printed in last year's hearings, be green book which you have before you. zator Smith. I would like to ask Mr. Schweppe a question right be about a very current subject. I happened to read about this
the paper this morning, to show you how this situation might 2-p. I understand there is a great deal of apprehension in the ***ty among livestock growers about Canadian beef shipped in. Servise a treaty should be negotiated between the United States buy one of a dozen livestock-producing nations for the shipment
reef into this country under the provisions of this treaty. What 3 be the situation there? VI. SCHWEPPE. The States would lose all control over the situation, Mr. HOLMAN. It would operate immediately. rator Smith. Wouldn't that be a possibility right there? M: SCHWEPPE. Yes, sir. Srator SMITH. It would be a dangerous possibility. Mr. HOLMAX. That is true of Canada. We are the only country * world in this embarrassing situation, except France and Mexico. Pres constitution is not the same.
Serator SMITH. It seemed to me that that was a very current situIt?r that involves the welfare of a lot of our people, if my State old become a livestock one just like the States out in your part the country, Mr. Chairman. I think it is a very current proposiges, and it illustrates what Mr. Schweppe is telling us. I wanted e sure that I had the right idea about it. W:. SCHWEPPE. That is exactly correct, Senator Smith. Trat proposal of ours, which is identical with the one in Senator Er ber's proposal, has in support of it not only logic and reason and pe potection of the several States from the Trojan-horse aspect of treaty clause, but it has behind it international precedent, virtually
We are one of the very, very few countries in the world-in fact, erly important country in the world—where a treaty is other than
a ternational agreement and automatically becomes domestic law the country-supreme law of the land-by virtue of being ratified.
I: the British Commonwealth of Nations, and in most other counamand I put into last year's record Dr. Finch's study, made in our mittee report for September 1, 1950, bearing my statement out in 21952 Senate Hearings on Treaties and Executive Agreements,
304)-a treaty does not become domestic law unless there is Perate legislation by the legislative body. Canada can make a SAT, Great Britain can make a treaty. That treaty is binding
international law as an international agreement. But it is not ***2 as domestic law on the courts of Canada or Great Britain. It **** affect private rights until either the British or the Canadian