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iuni aleiles Perivelv, implement that treaty by legislation. Th: Serveis de la little countries in the world, as Dr. Finch pointe

in the wireh he made in the September 1, 1950, report de Libandit te dont l'eave and Law. la vitezei '

ne Canadian Bar Review, Noveniber 1951 (p. 969 238 Wainwidtet rttle of Anglo-Canadian law that the provisions of

Latest In the state under international law, do not becon

ile ale unless they are implemented by legislation. A treat to

Real momentented by legislation cannot be the source of legal obl the Lisa te zorg **e rights

Sta mitt is the Canadian rule.

ado ****** That is right.

is lttai States to be in the same position as other cour --nt Rep. 20 sen, if a treaty with Great Britain, so far as th viperate pripale is nothing but an international agreement an

isisitiferi, why it should have a domestic effect in th libentet ved full, Judge Hudson, of the Harvard Law Schoo

foot witte tears ago in an article in the American Journal o L'usini lettore anomalous situation we find ourselves in be

Wand Lot Nejat per law clause, which other nations do not have Liptin that is self-executing in character, it is bindin,

curts in our country will enforce those treatie Pripomore rights, whereas courts in other countries hay che to enforce them. So what we are trying to do

www in our proposal is to make all treaties non-self

Igie Congress will know and the States will know a in '{ pak she trunty will have effect on the domestic law o

luty in our case will be only an international agrees cel putin case of Britain and most other countries, unti in via the full incorporates it into the domestic law of the countija

kerese it deems it necessary and proper to do so. Toto jept that is embodied in the proposal of the Americal

i lit, t'prored by the house of delegates, is the last clause Lido ***** intence, the "which” clause-legislation by Congreso

induld enact under its delegated powers in the absence of phone portion of the second sentence of our proposal, is identical Wifer Bricker's proposal, who also proposes to make all treaties Wiradi wa pileppa 200 self-executing, in order to put us on a parity with ito By Us of the world.

te word portion of the second sentence—the “which” clause Washe added as an additional control on implementing legis34:23 ander the treaty power-is intended specifically to limit the misle of Vissouri v. Holland. We have done that, in other words, ! me it plain that when Congress legislates under treaties, it La Posted to the constitutional powers which it has in the absence of PEY'; ta other words, that its constitutional powers to legislate are Bit reriget by reason of the existence of the treaty, beyond the

hi which it would have in the absence of the treaty. We think at the "which" clause will have the effect of keeping State and Mineral power in balance.

If the third idea, embodied in the “which" clause is put into a Uutional amendment, then the balance between State and Federal

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It will stay as it is, unless changed by constitutional amend

The Federal Government will not have greater power by **** of having ratified a treaty, and the States will not have less

-r by virtue of the Federal Government having ratified a treaty. Te reason behind that is severalfold. We have made pretty elabze studies of the whole historical background of the treaty power. s-save read all the documents from the Federalist and the debates.

* perfectly plain to us that it never was intended by the :wong Fathers that the treaty clause should be a device for unset

the balance between State and Federal power. When the Con**1.01 was originally adopted, you will remember, there were a

'It of States that had large doubts about the extent of the powers ferred, so 10 amendments were added, 2 years later, in 1791, to

Fery, very sure that the Government was a government of detri powers, and that what was not delegated was reserved. Of ... the Court, in determining the scope and effect of the 10th

lent, first determines what has been delegated, and what is amarily implied from the delegated power. The rest is necessar

rred to the States and to the people under the 10th amendment. No, it seems clear to us that the founding Fathers intended to Lain the balance between State and Federal power that was Tally established. They did not intend this modern concept at - If we make a treaty with Canada, or Lebanon, or Iran, on some .: 47 otherwise reserved to the States under the 10th amendment, welws and State constitutions to the contrary will pass out the **r—that never was their concept. They were very jealous of

* state rights. Jefferson expressed this concept in his Manual of
L'alertary Practice as follows:
Br te zeneral power to make treaties, the Constitution must have intended
Perbe:d only those objects which are usually regulated by treaties, and

her at berwise regulated. Paxt bare meant to except out all those rights reserved to the States; for the Prevident and the Senate cannot do by treaty what the whole Govern

merdicted from doing in any way. (Quoted from American Bar Associaci-tial. September 1952, p. 736.) Trixemiri v. Holland is to the contrary. Missouri v. Holland

sally holds that a treaty can be made and thereby the Federal nument can invade the area reserved to the States. Tre (HAIRMAN. I think this would be a very good place to stop. To bare five more witnesses. What time would be convenient for

iept this afternoon? N. SHWEPPE. Any time you name. > CHAIRMAN. Senator Smith and Senator Watkins, what time thirk? Would 2:30 be convenient for you?

mator SMITH. I have an appointment in the White House today * CHAIRMAN. We want you here if we possibly can.

Would 3 be better for you?

3 SMITH. I have got to be down there at 3 o'clock, and I will e br 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. HSHWEPPE. 2: 30 will be fine. Op WATKINS. I will not be able to meet at all this afternoon, 11. be here in the morning.

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Parliaments, respectively, implement that treat

if we coul is true of virtually all the countries in the wor] out in that study which he made in the Sept

" to the Committee on Peace and Law.

As stated in the Canadian Bar Review, 1

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 car gations affecting private rights. Mr. HOLMAN. That is the Canadian ru

sat i Mr. SCHWEPPE. That is right.

.. sent 1 We want the United States to be in tl tries. There is no reason, if a treaty w

placing British are concerned, is nothing but : has no domestic effect, why it shoul

· can get hii United States.

"line, and noti:

ested to be heai As a matter of fact, Judge Huds. pointed out some years ago in an ai International Law the anomalous cause of our supreme-law clause,

DEMOCRATIC ACTION, If we make a treaty that is self-e

n D. C., February 16, 1953. on our courts. The courts in our

Washington, D. C. with respect to private rights, wl a notification of the hearin. The no duty or any right to enforce

Joint Resolution 1, proposing : with this second idea in our pro

i States relative to the making executing. Then the Congress

rings to be held Wednesday, Februa what time, if any, the treaty very much interested in the propose the the country. A treaty in our instunity of presenting its views to you ment, just as in the case of

inquired at the offices of the Judiciai the legislative body incorpoi

int Resolution 1 and were informed th:

The try, to the extent it deems it The third concept that is

res today, February 16. This would gi Bar Association, approved

perare its statement, secure a competei,

suomittee. Or, if we are to comply with ti of the second sentence, the

equested in your notification of the hearing 1 TEE “which it could enact und

prepare the statement and have it in you of this resolution and the seriousness of tł

aH treaty." The first portion of the

might flow from such an amendment to tł

ne permitted to testify at a later date, and the with Senator Bricker's pr

this proposal be given sufficient notice to perm whatsoever non-self-exes

de prepare and present their case. other nations of the wo

of the organizations testified last year on tt The second portion

1 adequate time has not been available this yea

Bricker resolution, which is a considerable change it! which we have added lation under the treat

pustitution is a serious matter, particularly so whe doctrine of Missouri

mery question of national sovereignty. Two days. to make it plain the

Himportant question is inadequate. is limited to the con


Legislative Representative. treaty; in other wor not enlarged by re powers which it w

StrChairman, I shall continue where I was a lo

Will you continue, Mr. Schweppe?
that the "which
Federal power in
If that third

w proposal, we make it very very clear that the

the third idea in the "which clause" which is the constitutionala

enquire additional legislative power by virtue 0 from

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his can be "

+ congressional power remains the same naffected by the ratification of the me under the Constitution, un

and the balance between

by treaty but can only

I our proposal covers, in of constitutional con1. 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 tects freedom of speech, freedom

But what is the language of the il protection is in this form: -pecting those three subjects.

is a limitation on Congress. Congress to 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

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s you how important that is, the United Nations has in the -- ?W à so-called treaty on freedom of information which deals van freedom of speech and freedom of press. The United Nations prosed Covenant on Human Rights has in its provisions relating freedom of speech and freedom of press, which are to be dealt with kabar the treatymaking power.

Proriding that no treaty shall have internal effect in the country
des Congress legislates will squarely bring into effect the limitation
se the first amendment that "Congress shall pass no law,” which at
present time is a wide-open question.
Pintessor Chafee, in an article he wrote in the Wisconsin Law
km** a year or two ago, undertook to address himself to this par-
c'ar problem, to wit,

our committee's comment that the first amend-
you a limitation on Congress and not on the treatymaking power.
somes to the conclusion, as I recollect it, that while our point
as very serious we must assume that the Supreme Court will
frately refuse to adopt that view.
To are not satisfied with that sort of speculation. We believe that
der gap should be closed, and that there should be no doubt what-
for that nothing can be done under the treatymaking power that
agress is prohibited from doing under the first amendment.
These are the principal points incorporated in the amendment rec-
trended by the house of delegates of the American Bar Association.

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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' Senate Joint Resolution 43, now pending here.

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

By way of brief summary of the situation since the American Bai 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. Ilolland (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


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