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Executive in dealing with the allies that we must have in opposing Russian aggression.

Specifically the proposed amendments would require every treaty to go through a two-step legislative process before becoming valid as internal law of the country. It would have to be approved by twothirds of the Senate and then be implemented by legislation passed by both houses of Congress. Treaties of trade and friendship ordinarily provide for the rights of aliens to hold, acquire, inherit, and dispose of property, to engage in business and professions and to be free from burdensome taxation. Such treaties are usually self-executing. Since the beginning of the Republic they have, when ratified by the Senate, become domestic law which overrides inconsistent State law. The proposed amendment would require all such treaties, even though approved by two-thirds of the Senate, to be passed upon, so far as such provisions are concerned, by both houses of Congress, although in the absence of the treaty Congress would have no power to legislate with respect to such matters. I see no reason to hamper the exercise of the treaty-making power in this way when no dangers have resulted under the present constitutional system. We are told that other nations require approval of treaties by their legislative bodies; but the answer is that they do not require double approval. We have been getting along safely for more than a century and a half under a system that requires approval by two-thirds of the Senate instead of the approval of the majority of both houses required by some other countries. If our safeguard is sufficient, there is no reason to encumber the treatymaking power by requiring theirs in addition to ours.

More objectionable than the abolition of "self-executing" treaties, however, is the provision which would outlaw any treaty which would permit any foreign power or any international organization to supervise, control or adjudicate "matters essentially within the domestic jurisdiction of the United States." This would outlaw the control by an international organization of the production of atomic energy as proposed by the Baruch plan. It would preclude agreements with out allies giving them control over their troops quartered in our territories. It would impair our power to make agreements with allies for the unification and direction of armed forces, since the control of our armed forces is essentially a matter within our jurisdiction. It would eliminate agreements for arbitration or juridical settlement of controversies of an international character to which our nationals are parties. If we are to establish a world order based on law, as distinguished from selfishness and force, arbitration and juridical process must have wider and wider acceptance. That seems to me to be selfefficient. This amendment would have outlawed such simple arbitrations as that under which citizens of this country recovered an award in the Black Tom litigation. It would outlaw the agreements for juridical settlement contained in the Convention on International Civil Aviation. For this country to refuse to permit arbitration or the juridical settlement by an international tribunal of a dispute over which it has jurisdiction, is not essentially different from an attempt by one of the States of the union to preclude adjudication in a Federal court of a dispute of which its State courts would have jurisdiction. Such narrow parochialism would be unworthy of this great country, and would definitely preclude it, in my opinion, from achieving successful world leadership.

Perhaps the most objectionable provision of all is that relating to executive agreements. If this country is to wage war as a member of an alliance in Korea or anywhere else, it is absolutely necessary that the executive have power to enter into executive agreements about unforeseen matters which are daily arising and which cannot await legislation or the slow process of treatymaking. As was well said by the representatives of the Bar Association of the City of New York:

The Constitution gives to Congress the power to declare war but not the perhaps more difficult task of conducting the war or its aftermath other than formal establishment of peace under the treatymaking power. The Japanese surrender and the creation of the Far Eastern Commission, which were legal bases for our occupation of Japan, both took the form of executive agreements. The German surrender was also an executive agreement, as were the several agreements with the United Kingdom and France for occupation of Western Germany. All of these agreements were part of a continuous process requiring also congressional legislation and appropriations for implementation. At the lower end of the scale are the innumerable agreements made by officials of various ranks for the redress of grievances of Americans in other countries or of foreigners here. Taken literally, the present section would apply to agreements respecting protocol, or for visits of state, as well as the myriad agreements involved in joint occupation of a conquered foe. Thus, the President, without congressional sanction, could not make the simplest of preliminary arrangements, such as an agreement to meet and discuss the terms of a treaty, an armistice, or a draft convention. This would indeed reverse the decision in the Constitutional Convention to have a single executive, and would substitute 96 executives in the Senate and 435 in the House.

It has been argued that because of the world forces whirling around us we need to take unusual precautions to protect our institutions against them. This is the counsel of fear; and the foundations of this Republic have been laid, not in fear, but in faith and in courage. The disordered condition of the world is no reason for retreat into isolationism. It is a challenge to world leadership; and, if we are to exercise that leadership, we must not hamper ourselves by unwise restrictions on the treatymaking power which will prevent the proper handling of our foreign relationships. Under the present provisions of our Constitution we have grown to greatness. There is no reason to think that, now that we are great, we can no longer trust in them. The President and the Senate have not betrayed us in the past. Why should we think that they will betray us in the future?

Senator DIRKSEN. Have you any questions, Senator Kefauver?
Senator KEFAUVER. Thank you, Mr. Chairman.

May I say in the first place, I think this is a very excellent presentation of the reasons why this resolution should not be passed, made by a jurist whom we all recognize to be objective, a great student, and a fine American.

Mr. Justice Parker, you have been connected with and you were a member of the Section of International and Comparative Law of the American Bar Association. I wish you would relate briefly just what the experience was in the house of delegates and in the international and comparative law section with reference to the adoption of the American Bar resolution, which is, of course, similar to the so-called Bricker resolution.

Judge PARKER. Senator Kefauver, I shall be glad to comply with your request, but I wish to say at the outset that I am not authorized to speak for the American Bar Association, and I am not authorized to speak for the section of international and comparative law, for the

reason that the American Bar Association has a rule that nobody can speak for the association except through the house of delegates. With that explanation and with the understanding that I am giving you merely my recollection of what occurred at Chicago, I shall be glad to answer your question.

When the resolution was introduced, Mr. Lyman Tondel, the chairman of the section

Senator KEFAUVER. This section you are talking about is the section of international and comparative law?

Judge PARKER. I should begin over again and say that when the Bricker resolution was introduced, Mr. Lyman Tondel, the chairman of the section of international and comparative law, had a study made and a report prepared for the section which was presented to the council of the section when it met in Chicago on the day preceding the house of delegates.

Senator KEFAUVER. In February of this year?

Judge PARKER. In February of this year. The council of the section approved the report as submitted, with certain minor changes in verbiage which were to be made

Mr. SMITHEY. Could you tell us, for the record, who was present at the council meeting?

Judge PARKER. I cannot tell you offhand.

Mr. SMITHEY. Do you know approximately how many were there?
Judge PARKER. I would suppose around not over a dozen.
Mr. SMITHEY. How many are in the council, all told?

Judge PARKER. I am afraid I cannot give you that accurately. Senator DIRKSEN. I might say for the record, I believe the chairman. of the Judiciary Committee has addressed a letter to the proper person in the American Bar Association to secure a complete report on that whole matter, which will be included in its entirety in the record. That will include the number of people present, the formal action taken, and whose views were represented, so a fully accurate picture can be had.

Judge PARKER. That is correct. He sent me a copy of that, and I think I have it here in my briefcase. If you have it already in the record, there is no use bothering about it.

At all events, when the council approved this report I was asked, as section representative in the house of delegates, to present the report on the floor of the house of delegates. I did, in a brief statement. Whereupon, an objection was made to the reception. A point of order was raised that the report could not be received because it was based upon reasons in contravention of those given by the committee on peace and law, which had made a report. That point of order was not sustained.

Whereupon, a motion was made not to receive the report. That was debate at considerable length. Whereupon, a gentleman from Delaware, Mr. James Morford, I think, made a motion that the report be received without any expression of opinion by the house of delegates, and it was so received.

That is the fact, but I do not feel at liberty to lay the report before you because it has not been approved by the house of delegates.

Senator KEFAUVER. The report you talk about is the adverse report against the Bricker resolution or a similar resolution?

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Judge PARKER. That is correct, sir. The report of the section on international and comparative law was opposed to the Bricker resolution along the lines that I have indicated in the remarks that I have made.

Senator KEFAUVER. Mr. Chairman, I believe I have a copy of the report to which Justice Parker refers, of February 1953. Has that been put in the record by Mr. Perlman?

Mr. SMITHEY. I think, sir, that Mr. Perlman put it in the record. Senator KEFAUVER. If it is not in the record, I certainly would like to have it in the record, and I have a copy of it here.

Senator DIRKSEN. The committee will make certain that it is included in the record if Mr. Perlman has not already submitted it. Senator KEFAUVER. I want to identify, Mr. Chairman, that I am the one who wrote Justice Parker. He refers in the first paragraph to a letter asking if he would not allow me to take up with the chairman of the committee having him here to testify, because I felt that he was an eniment authority on this subject. When he refers to a letter having been received from a Member of the Senate, I am the Member who wrote Justice Parker.

I believe I have no further questions.

Senator DIRKSEN. I have only one observation to make. I think the greatness and vitality of our country, Judge, reposes to some extent, at least, in the fact that people of equal dignity and stature in the law and in the judiciary can have opposing views and ventilate them freely.

I suppose you know Florence Allen, who is a judge of the United States Circuit Court of Appeals for the Sixth Circuit.

Judge PARKER. I know Judge Allen well, and I have a very high opinion of her.

Senator DIRKSEN. She has done an interesting volume here as part of the Kappa Delta Phi lecture series, the title of which is The Treaty as an Instrument of Legislation. There is one observation of hers that I think is rather interesting, the only one I want to comment on this morning. We are going to have a lot more witnesses, I fancy, before we are through. It goes back to your observation that we have done pretty well for 164 or 165 years under the treaty provision of the Constitution as it stands today.

She says, on page 15 of the foreword in her book, this:

Our forefathers would understand the need for treaties which curtail the sovereign powers of nations with reference to international affairs; for instance, treaties which abolish the right to make war. They would not have understood innumerable presently proposed treaties which deal with essentially domestic questions.

I think that can be safely quoted without doing violence to the rest of the context there. I am never insensible to the force of the argument that it is not a wise thing to amend the Constitution of the United States unless there is a need for it, and I am qutie sensible, of course, to the argument that we have done pretty well thus far under the existing constitutional provision relating to treaties. But I think for the purposes of the record, I should observe that this is a wholly different time and era in which we live. We have had a United Nations, with all its specialized agencies and commissions, only since 1945, and, as a matter of fact, it has come into full fruition only in the last few years. Many of them have their own constitutions. Many of them do

specialized work and have power to formulate and to propose and to submit treaties and conventions, notably the International Labor Organization, which has been functioning now for 35 years, which is now an integrated component in the United Nations and which, through an amendment to its own constitution, is now in a position, of course, where it can submit such conventions. It has submitted between 90 and 100 already.

It would appear to me that so many of those would very clearly impinge upon the domestic rights of our citizens, and I think it is a matter that is probably glossed over a little. For instance, section 2 of the Bricker resolution:

No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States * *

If the language in this resolution is faulty, then I hope there is enough talent and word facility in this committee to contrive the language that will do what we want it to do.

But what is involved here is essentially the objective that is set out in paragraph 7 of article II of chapter I of the United Nations Treaty, which says that those matters that are essentially within the jurisdiction of a State shall not become the proper thing for the United Nations to act upon. We are following virtually the language used in the UN Charter, essentially domestic in character, you see.

That is the striving of this resolution, and I think it is the objective of this committee. So if there is any fault in language, I fancy we can cure that.

Going back, then, to the question of having done well for 165 years, we are up against a different situation. We have an Economic and Social Committee, we have an educational group, we have the International Labor Organization, a group that deals with communications, a group that deals with Postal Union, and so forth, and so many of them now are in a position where they can contrive and submit conventions and treaties that would have a definite impact upon the enumerated rights of our people within the United States. That is the matter with which we are concerned.

You mentioned there was a fear in the early days when the framers were at work on the structure of this Government. In 1788, Patrick Henry said:

Sure I am, if treaties are made infringing our liberties, it will be too late to say that our constitutional rights are violated.

We want to be reasonably sure, in the face of an avalanche of treaties, with the Senate standing in the way, that they shall not destroy those rights.

Evidently there was a very distinguished forbearer from your State, of whom you may know. His name was Mr. Lancaster, from North Carolina. I have no doubt he was one of those venerable, introspective old Tar Heels who lived back in 1788. He said, "If treaties are to be the supreme law of the land they may render nugatory our Bill of Rights."

So you see, there were some fears away back in 1788.

We did not have, of course, the impact of these international organizations, with so many rights, as we have today. I think there is today in this country what Edmund Burke referred to in using, I

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