Because the present world situation requires an increased use of ! international agreements and because the subject matter of such agreements has been tremendously broadened to cover almost all social and economic problems of our times, our Nation has reached a time in its history when our constitutional provisions governing the making of treaty law requires extensive overhauling to meet current needs. Businessmen of the Nation are greatly concerned at the flood of agreements vitally affecting domestic rights and property which is pouring out of the United Nations and its specialized agencies in an ever-increasing stream. They know it is virtually impossible to cover all of the hundreds of conferences held each year all over the world. and there to effectively protect their interests. They believe that the best answer to these problems is in adoption of a constitutional amendment which prevents treaties from overriding the Constitution and which provides that treaties will not become domestic law-to either create or destroy rights and property interests-until and unless and only to the extent that the Congress incorporates them into domestic law. The policy here recommended will leave the treatymaking power in full force and effect as to all matters genuinely within the sphere of international agreements. This policy will not affect the United Nations collective-security efforts which everyone applauds. But it will stop the unwitting, or intentional change or destruction of domestic rights in the great outpouring of new proposed treaties, by virtue of our Constitution's "supremacy" clause. A constitutional amendment will achieve an immediately effective result by ending all the uncertainties in this field created by differing views, unclear court decisions, and absence of authoritative court decisions on important questions. Only in this way will our system of free enterprise, the keystone which makes ours the greatest Nation on earth, be adequately protected in a world where peace or war depends upon our system keeping us the strongest nation on earth.

If I may say, Senator, I greatly appreciate your staying and hearing this statement at this late hour.

The CHAIRMAN. Thank you.

Have you any extra copies of your statement here?

Mr. SMITHEY. I have them, Senator, on file here.

The CHAIRMAN. Will you send 3 or 4 down to my office?

Thank you very, very much indeed.

Mr. RHYNE. Senator, I have here some biographical data. I don't know whether it is of interest to the committee, but I though I would submit it.

The CHAIRMAN. We will be very glad to incorporate that.

(The material referred to follows:)

CHARLES S. RHYNE

Member of District of Columbia bar.

Member of District of Columbia and American Bar Associations.

Member, house of delegates of American Bar Association (1944-54) and chairman, committee on draft of that house.

Chairman, aeronautical law committee, American Bar Association.

Former national chairman, Junior Bar Conference, American Bar Association. Former secretary, vice chairman and chairman of the section of international and comparative law of the American Bar Association and presently a member of council.

Former chairman committee on United Nations and member of various committees of the section.

Member, committee on scope and correlation of work of the American Bar Association.

Delegate of American Bar Association to International Bar Association organization convention in New York and London convention of 1951.

Member, American Society of International Law.

Chairman and member of various other committees of the District of Columbia and American Bar Associations.

Author of various articles on international law subjects published in American Bar Association Journal and Law Reviews.

Mr. SMITHEY. Mr. F. C. McKee.

STATEMENT OF FREDERICK C. MCKEE, PITTSBURGH, PA., ON BEHALF OF THE COMMITTEE ON NATIONAL AFFAIRS OF NEW YORK CITY

Mr. McKEE. Mr. Chairman, I will make this very brief.

The CHAIRMAN. We have all the time in the world. We are very anxious to get this thing clearly before the subcommittee.

Mr. McKEE. My name is Frederick C. McKee. I am a Pittsburgh businessman.

The CHAIRMAN. What kind of a businessman ?

Mr. MCKEE. A Pittsburgh businessman of Pittsburgh, Pa., speaking on behalf of the Committee on National Affairs of New York City, of which I am chairman. I, and a number of the members of these organizations, have been active in various ways working for the defense of the United States, such as the old Stimson committee for an embargo on scrap iron and oil to Japan, the Committee to Defend America by Aiding the Allies, of which I was treasurer and, more recently, over the past 4 years, the Committee to Defend America by Aiding Anti-Communist China, of which I am chairman.

In looking at our foreign relations history, I think we are impressed by the fact that there have been three types of mistakes: doing the wrong thing, doing the right thing too late, and doing nothing. And while there have been some cases of bad mistakes, such as Yalta, I think that on balance the errors of omission have been much more serious than the errors of commission.

I believe that this amendment would increase those errors of omission. I believe that the language of section 2 is so broad that there would be many things that we would like to do and have done for our mutual protection which might, by court decision, be rendered impossible.

For example, all of us are very much concerned today that there shall be a tight embargo on strategic materials going to the Communists. Any arrangement on embargoes or any other type of mutual defense has to be reciprocal. And I can see conditions where we might want to enter into certain pacts on those restrictions, which might be considered some infringement of certain property rights here.

The same thing is true of bases. I think everybody will agree on the wisdom of a ring of bases around Russia, because of the danger that at any time they might attack us with what atom bombs they have. And yet such an arrangement has to be mutual. We might have to permit joint use of bases. We might have to permit Canadian troops to go through to help us in the defense of Alaska, and there may be certain questions raised that might be considered as

affecting certain minor domestic rights, which would prevent their action.

The same is true in a larger sense in the United Nations in NATO.

I think that the effect of this amendment in its present form would be somewhat similar to the effect of the Neutrality Act which was passed in 1935, which, in the opinion of many people, somewhat gave a green light to Hitler. It is significant that very shortly after that, he marched into the Rhineland and began his piece-by-piece acquisition of territory. Because he felt that this country would not enter into any worthwhile cooperative agreement with the rest of the world; that we would not even furnish munitions to those who were attacked.

And I think that it is very significant that there was a second green light that occurred, when, I believe, on the 10th of July 1939, the Senate Foreign Relations Committee, by a 12 to 11 vote, refused to report out a resolution to remove the arms embargo. That, to Hitler, indicated that with the lead he had in aircraft, and the inability of the English and French to secure aircraft in this country, he could then wage war. We know that 3 weeks later he made his deal with Stalin, and 6 weeks later he was in Poland.

I think that the third provision, which requires action by the House, as well as the two-thirds of the Senate, is again a further complication to this difficult problem of making treaties and making them promptly enough to meet these very dangerous conditions in which we live.

As to No. 4, executive agreements, I realize that there have been cases where that has been improper. Executive agreements have been made, but on balance I think in the main they have been very necessary.

I think it is very much like the chief executive of a corporation. You cannot have bylaws that make it necessary for him to take every action to the board of directors. If it is necessary that these restrictions be placed on executive agreements, it is going to throw more to the Senate, which is already overburdened with work, because I know how hard all of you people work—or the thing will not be acted upon at all.

I think that basically we have to look at these problems as a matter of relative risk; that if you tie the hands of your Chief Executive and Congress to the point where they are unable to take action for mutual cooperation against aggressors to protect yourself, it is much worse than to permit them to continue with the powers that were given under the Constitution to the President and the Senate to make such treaties as may be necessary.

I think that if we read the debates over the constitutional convention we will see that those people recognized the impotence of the confederation to deal properly with certain of these problems. And the world in which they lived was an even less dangerous world than the one in which we live. At that time it took 40 or 50 days to cross the ocean. Today it is done in 8 or 9 hours. We had no atom bomb. The problem of action, of prompt action, was so much less urgent than it is today.

I would like to, in closing, read two sentences from an editorial from the New York Herald Tribune of February 21, 1953.

The CHAIRMAN. Why not put in the entire editorial.

(The editorial referred to follows:)

[New York Herald Tribune, February 21, 1953]

THE TREATYMAKING POWER

Speaking on behalf of the New York City Bar Association, Mr. Dana Converse Backus made a strong, practical argument before the Senate Judiciary Committee against the proposed Bricker amendment to the constitutional provisions on treaty making. Asserting that this amendment "would put serious barriers in the way of conducting our foreign affairs," Mr. Backus added: "In these dangerous times when obliteration can descend from the sky without warning and when there is greater need than ever to obtain agreements with other nations and perform those agreements, our country cannot afford the risk of such impediments."

The Bricker amendment is directed primarily at the so-called supremacy clause of the Constitution, which gives treaties the status of the "supreme law of the land." The intent of this clause was to insure that treaty provisions would not be defied, after ratification, by the various State and local governments that might be affected. Because of the importance this gave to treaties, ratification by two-thirds of the Senate was required. In practice the Senate has zealously upheld its participation in treatymaking, scrutinizing treaties carefully and debating them at length.

Nevertheless, Senator Bricker (and more than 60 Senators agree with him) has expressed fears that some day the American people may elect a President who may negotiate a treaty abridging vital American freedoms, at a time when there may be enough Senators willing to ratify such a document. He, therefore, would have any alteration in the laws or Constitution of the United States by treaty made subject to further determination by act or joint resolution of Congress. If enough Americans favored a treaty affecting the fundamentals of American citizenship to push it through the present ratification formula, it is more than probable that simple majorities could be obtained for it in Congress. Meanwhile, however, the operation of ordinary treaties, dealing with urgent matters of national security, would be gravely hampered by setting up an additional requirement for detailed interpretation of the documents.

Mr. Bricker also proposes checks on executive agreements. It is a fact, however, that such agreements have been resorted to in part because of the difficulty of ratifying formal treaties; if the latter process is made even more cumbersome, Presidents may be tempted to evasions of the whole spirit of the Constitution in order to procure international action when time is of the essence. In other words, while trying to safeguard coming generations against what may seem to Senator Bricker to be folly, his amendment handicaps the present and raises the prospect of greater evils. It is an attempt to do what the American Founding Fathers wisely avoided, and what the drafters of foreign constitutions have sometimes done to their nations' disadvantage: to place the future in a straitjacket and to lay down detailed rules for every possible contingency.

The CHAIRMAN. Read the sentences, anyway.

Mr. McKEE. Thank you, Senator. I would just like to finish with these two sentences:

In other words, while trying to safeguard coming generations against what may seem to Senator Bricker to be folly, his amendment handicaps the present and raises the prospect of greater evils. It is an attemp to do what the American Founding Fathers wisely avoided, and what the drafters of foreign constitutions have sometimes done to their nations' disadvantage: to place the future in a straitjacket and to lay down detailed rules for every possible contingency. Thank you very much, Senator.

The CHAIRMAN. Thank you.

Now, when is our next meeting of this committee?

Mr. SMITHEY. Senator, there is no meeting scheduled at this time. I think the subcommittee might recess subject to the call of the Chair. The CHAIRMAN. All right. We will recess subject to the call of the Chair.

(Whereupon, at 5:10 p. m., a recess was taken to the call of the Chair.)