AND

Parlaments, respectively, implement that treaty by legislation. Th Speci vatially all the countries in the world, as Dr. Finch pointe audy wich he made in the September 1, 1950, report tee on Peace and Law.

the Coun

As stated in the Canadian Bar Review, November 1951 (p. 969) s a well ostabished rule of Anglo-Canadian law that the provisions of saming upon the state under international law, do not becon gie land unless they are implemented by legislation. A treat to cen implemented by legislation cannot be the source of legal obl the t quedas idecons, ova rights.

སྨོན་མཐོནནི

M. MODAN. That is the Canadian rule.

rowser. That is right.

e Urted States to be in the same position as other cour bere s to reason, if a treaty with Great Britain, so far as th sa ne concerned, is nothing but an international agreement an comes e effect, why it should have a domestic effect in th

ado

th

Des

the

and

TO US

The

A nacter of fact. Judge Hudson, of the Harvard Law Schoo a seme years ago in an article in the American Journal o onal law the anomalous situation we find ourselves in be od sipreme law clause, which other nations do not have a treaty that is self-executing in character, it is bindin, the courts in our country will enforce those treatie exacre pevate rights, whereas courts in other countries hav atay or any ight to enforce them. So what we are trying to d is second idea in our proposal is to make all treaties non-self st Then the Congress will know and the States will know a of ex, the treaty will have effect on the domestic law o

དོར 1: ད ག ངས་ཟེར “ A treaty in our case will be only an international agree

વ્હેત

th

des the case of Britain and most other countries, untils cave body incorporates it into the domestic law of the coun e extent it deems it necessary and proper to do so. The concept that is embodied in the proposal of the America By: Usperation, approved by the house of delegates, is the last clause o do avond sentence, the "which" clause-legislation by Congres

à cà could enact under its delegated powers in the absence of

Post portion of the second sentence of our proposal, is identical wi Senator Bricker's proposal, who also proposes to make all treaties whapwever non-self-executing, in order to put us on a parity with ochet Mapons of the world.

The second portion of the second sentence-the "which" clause which we have added as an additional control on implementing legisaron under the treaty power-is intended specifically to limit the decarone of Missouri v. Holland. We have done that, in other words, to make it plain that when Congress legislates under treaties, it

mited to the constitutional powers which it has in the absence of troy; in other words, that its constitutional powers to legislate are no onlarged by reason of the existence of the treaty, beyond the powers which it would have in the absence of the treaty. We think that the "which" clause will have the effect of keeping State and Fodoral power in balance.

ti that third idea, embodied in the "which" clause is put into a Constitutional amendment, then the balance between State and Federal

will stay as it is, unless changed by constitutional amendThe Federal Government will not have greater power by of having ratified a treaty, and the States will not have less er by virtue of the Federal Government having ratified a treaty. The reason behind that is several fold. We have made pretty elabve studies of the whole historical background of the treaty power. -Save read all the documents from the Federalist and the debates. was perfectly plain to us that it never was intended by the ting Fathers that the treaty clause should be a device for unsetthe balance between State and Federal power. When the Consation was originally adopted, you will remember, there were a er of States that had large doubts about the extent of the powers ferred, so 10 amendments were added, 2 years later, in 1791, to A very, very sure that the Government was a government of deed powers, and that what was not delegated was reserved. Of e, the Court, in determining the scope and effect of the 10th 2-ment, first determines what has been delegated, and what is sarily implied from the delegated power. The rest is necessarerved to the States and to the people under the 10th amendment. Now, it seems clear to us that the Founding Fathers intended to atain the balance between State and Federal power that was rally established. They did not intend this modern concept at If we make a treaty with Canada, or Lebanon, or Iran, on some t otherwise reserved to the States under the 10th amendment, laws and State constitutions to the contrary will pass out the w-that never was their concept. They were very jealous of State rights. Jefferson expressed this concept in his Manual of mentary Practice as follows:

Be the general power to make treaties, the Constitution must have intended ehend only those objects which are usually regulated by treaties, and otherwise regulated.

ast have meant to except out all those rights reserved to the States; for the President and the Senate cannot do by treaty what the whole Governterdicted from doing in any way. (Quoted from American Bar Associaraal, September 1952, p. 736.)

Missouri v. Holland is to the contrary. Missouri v. Holland ally holds that a treaty can be made and thereby the Federal ment can invade the area reserved to the States.

The CHAIRMAN. I think this would be a very good place to stop. Tave five more witnesses. What time would be convenient for meet this afternoon?

M. SCHWEPPE. Any time you name.

CHAIRMAN. Senator Smith and Senator Watkins, what time think? Would 2:30 be convenient for you?

ator SMITH. I have an appointment in the White House today o'clock.

CHAIRMAN. We want you here if we possibly can. Would 3 be better for you?

ator SMITH. I have got to be down there at 3 o'clock, and I will ' by 3:30, I presume.

HLMAN. We can meet at 2 o'clock if you want to.

CHAIRMAN. Unfortunately, I am tied up until 2:30.

NHWEPPE. 2:30 will be fine.

or WATKINS. I will not be able to meet at all this afternoon, l be here in the morning.

Parliaments, respectively, implement that treat is true of virtually all the countries in the worl out in that study which he made in the Septe the Committee on Peace and Law.

As stated in the Canadian Bar Review, N

It is a well-established rule of Anglo-Canadian treaty, though binding upon the state under inte part of the law of the land unless they are implen that has not been implemented by legislation ca gations affecting private rights.

Mr. HOLMAN. That is the Canadian ru
Mr. SCHWEPPE. That is right.

We want the United States to be in th tries. There is no reason, if a treaty w British are concerned, is nothing but : has no domestic effect, why it shoul United States.

As a matter of fact, Judge Huds pointed out some years ago in an a International Law the anomalous cause of our supreme-law clause. If we make a treaty that is self-e on our courts. The courts in our with respect to private rights, w no duty or any right to enforce with this second idea in our pro executing. Then the Congress what time, if any, the treaty the country. A treaty in our ment, just as in the case of the legislative body incorpor try, to the extent it deems it

The third concept that is Bar Association, approved of the second sentence, the "which it could enact und treaty."

The first portion of the with Senator Bricker's pr whatsoever non-self-exec other nations of the wo

The second portion

which we have added

lation under the treat

doctrine of Missouri

to make it plain the
is limited to the con
treaty; in other wor
not enlarged by re
powers which it w
that the "which"
Federal power in
If that third
constitutional am

if we coul

', to

at v

sent l placing ready ne can get hir ne, and noti ested to be hear

. DEMOCRATIC ACTION,
n D. C., February 16, 1953.

Washington, D. C.

ved notification of the hearin The Joint Resolution 1, proposing & iStates relative to the making rings to be held Wednesday, Februa very much interested in the propose rtunity of presenting its views to you nquired at the offices of the Judicial int Resolution 1 and were informed th

Sas today, February 16. This would gi

repare its statement, secure a compete Committee. Or, if we are to comply with th quested in your notification of the hearing un prepare the statement and have it in you e of this resolution and the seriousness of th e might flow from such an amendment to th be permitted to testify at a later date, and th this proposal be given sufficient notice to perm ly prepare and present their case.

adequate time has not been available this yea of the organizations testified last year on th Bricker resolution, which is a considerable chang stitution is a serious matter, particularly so whe very question of national sovereignty. Two day -important question is inadequate.

JOHN J. GUNTHER,
Legislative Representative.

Will you continue, Mr. Schweppe?

The

G

ar. Chairman, I shall continue where I was a the third idea in the "which clause" which is th wr proposal, we make it very very clear that they additional legislative power by virtue o from

can

a be

→ congressional power remains the same affected by the ratification of the

me under the Constitution, un

and the balance between

by treaty but can only

our proposal covers, in of constitutional con. 1952, report. (See 1952 ve Agreements, p. 484.) It t amendment. It is a point many writers on the subject. ..as 1950. The first amendment fects freedom of speech, freedom But what is the language of the d protection is in this form: pecting those three subjects.

is a limitation on Congress. Congress treaty power is vested in the President il not only read the constitutional language ..Federalist, you will see that the founding they should set up a separate agency for the There was discussion as to whether Congress There was a discussion as to whether the President alone. They determined not to put the power in determined not to put it in the President. They t up a separate treatymaking agency consisting of the the Senate. The limitations in the first amendment to freedom of speech, press, and religion are only limiCongress. They are not a limitation on the treatymaking

w you how important that is, the United Nations has in the how a so-called treaty on freedom of information which deals freedom of speech and freedom of press. The United Nations posed Covenant on Human Rights has in its provisions relating freedom of speech and freedom of press, which are to be dealt with der the treatymaking power.

Providing that no treaty shall have internal effect in the country
ales Congress legislates will squarely bring into effect the limitation
the first amendment that "Congress shall pass no law," which at
present time is a wide-open question.

Professor Chafee, in an article he wrote in the Wisconsin Law
new a year or two ago, undertook to address himself to this par-
ar problem, to wit, our committee's comment that the first amend-
is a limitation on Congress and not on the treatymaking power.
omes to the conclusion, as I recollect it, that while our point
very serious we must assume that the Supreme Court will
Jately refuse to adopt that view.
We are not satisfied with that sort of speculation. We believe that
gap should be closed, and that there should be no doubt what-
that nothing can be done under the treatymaking power that
gress is prohibited from doing under the first amendment.
These are the principal points incorporated in the amendment rec-
ended by the house of delegates of the American Bar Association.

30573-53- -5

The committee on peace and law has examined all of the proposa on treaties and executive agreements now pending in Congress. Whil your committee believes that the text previously recommended by i fully and adequately covers all of the constitutional principles whic are involved, and which were approved by the house of delegates o the American Bar Association, an even shorter version, wholly withi: those principles, could appropriately read as follows:

SECTION 1. A provision of a treaty which conflicts with this Constitution sha not be of any force or effect. A treaty shall become effective as internal law i the United States only through legislation which would be valid in the absenc of treaty.

SEC. 2. Executive agreements shall be subject to regulation by the Congres and to the limitations imposed on treaties by this article.

This shorter text is embodied in Senator Arthur Watkins' Senat Joint Resolution 43, now pending here.

Because the final text of any proposed constitutional amendmen will be drawn by the Judiciary Committees of Congress, our committed suggests that you also give this shorter version consideration.

By way of brief summary of the situation since the American Bar Association text recommendation was made to Congress for consid eration, no objection has been offered to the first sentence rendering void all treaties in conflict with the Constitution, except that such a statement is "unobjectionable in itself but unnecessary" (Zechariah Chafee, Jr., Harvard Law School Record, February 21, 1952; see American Bar Association Journal, September 1952, p. 794). Nor has much substantial opposition been expressed to the first clause of the second sentence which renders all treaties non-self-executing until Congress acts by implementing legislation, thus putting the United States in this respect on a parity with the great majority of nations. In virtually all of the countries of the world a treaty, while effective as an international obligation upon ratification, does not become domestic law unless and until made so by parliamentary action. (See American Bar Association Journal, September 1952, pp. 468, 469; Report of Committee on Peace and Law, September 1, 1950.)

The principal attack on the treaty amendment recommended by the American Bar Association centers on the last clause of the second sentence, usually referred to as the "which clause." That clause provides that implementing legislation by Congress intended to make treaties effective as internal law must be legislation by Congress "which it could enact under its delegated powers in the absence of treaty." As stated, the "which clause" is intended to set aside the rule of Missouri v. Holland (252 U. S. 416), which establishes the principle that when the United States makes a treaty on a subject within the treaty power, the Congress can enact legislation to implement the treaty which it would not have power to enact in the absence of a treaty, and thus enter a field normally reserved to the States. That decision makes possible the complete upsetting of the constitutional balance between Federal and State power through the exercise of the treaty power by the President and two-thirds of the Senators present (American Bar Association Journal, September 1952, p. 795). The objection to the American Bar Association draft was stated in the committee report to the New York State Bar Association as follows:

The result would be that even if a treaty deals with an appropriate subject of international agreement, the Congress would have no power to implement it or