Stator WATKINS. Did you say Congress had been given that Mr. Rix. That is a necessary attribute of this power that the rer of the United Nations under articles 55 and 56 binds us to te human rights in every way we can. I think there is some ce in 56 to the enactment of such legislation as made without ding effect to promote it to such extent as necessary to carry The intent of this article 56. Aw, if you can conceive, gentlemen, any broader powers than cold give to any government or to Congress to enact legislation atural, social, economic, civil, and political rights, if you genen are dealing with any other rights than those, I would like what they are in your legislation. And, in our opinion, that er has conferred upon Congress now the unlimited power which Lenski and his associates in the Labor Committee of the House ved they had and stated when they submitted a comprehensive rights bill to the Congress for enactment, because in the report **hat committee to the House the statement was made that this does not require any constitutional authority for its enactment se the power is based on the Charter of the United Nations. That artling at the time, but it is the opinion of our committee that wer exists and at the present time Congress has the unlimited to legislate under those provisions. Now, just see where that takes us. Suppose anyone of these lawyers Eas a pending case in the courts or if Congress enacts an act one of the lawyers takes up to the courts to determine its constiality, to which will the court look for the source of the authority, -Constitution of the United States or to the Charter of the United s! You have to have one little book with the Constitution of - Tited States on the one hand and the Charter of the United tes to determine the source of that act? se the Supreme Court should hold or the lower court should at there is no provision in the Constitution of the United States stifies that legislation and the Supreme Court of the United says that is justified under the Charter of the United Nations comes within one of these purposes? ator WATKINS. What will the effect be on something that is in existence by the adoption of the amendment after it has MHOLMAN. This will take care of it. Rx. I would hardly dare to answer the question. YOF WATKINS. It is already law now. M: HOLMAN. Yes, but Congress has not legislated yet. Your legiswould be banned by your constitutional amendment. MOT BRICKER. You must comply with the Constitution. Rx. If the Charter of the United Nations was ratified before artment of the legislation, the question would arise as to present But that is a question which we have not touched yet and which probably have to touch, whether or not this whole amendment are a retroactive feature. BRICKER. Three judges of the Supreme Court have already to the United Nations for their source of authority in the Steel case. If two more had agreed with them, then we would be face face with what you suggest here. Mr. Rix. I think we have been fully conscious of that, Senator. Do we want to live under that type of government? Can we repud ate the obligations under the Charter of the United Nations? Wh would be the effect on the world if we taken an act to repudiate th power right now? I say that we must be sure that in this amendme that we are proposing that the power will exist, or that a situati will be covered which removed the power of Congress to legisla beyond its express powers, or our system of delegated government go out of the window. Going back to that question of what that lawyer would do in t case of constitutionality, suppose the Supreme Court of the Unite States decided that the legislation was invalid under the Constit tion, and also invalid under the Charter of the United Nations, an our Nation made a point of endeavoring to secure, for instance, a advisory opinion from the Court of International Justice, and t Court of International Justice should hold contrary to the opinio of the Supreme Court of the United States? Where would we be the opinion of the world? Gentlemen, these are unheard of questions, but they are here an they must be met in some way. Now, I have asked in this article two questions: one, if we can perm the situation to exist that now exists, can the independence of the j diciary be maintained? We fought hard in the early days to secure tl position of the Supreme Court by which it could declare unco stitutional any acts of Congress. If a superpower should exist, or it does not have to look to the Constitution of the United States bu has to look to the provisions of treaties for the source of power to ena the legislation, what becomes of our independence of the judiciary Senator WATKINS. They have their independence, but their decre would not amount to anything. Mr. Rix. That is it. Senator WATKINS. There would be an authority higher than th Constitution. Mr. Rix. That is right. Another question I ask is what protection can minorities hav under a government with unlimited powers? Senator BRICKER. That is the most serious question of all. Mr. RIX. We see constantly in the press and at every hearing a mem ber of a minority appealing to the Constitution of the United States I grant that the word "prohibited" which was used by Mr. Justic Holmes in the Migratory Bird case may be expanded upon to mea that if any power is prohibited by the Constitution of the Unite States, such as the power of Congress to enact legislation affectin religion or freedom of the press, that there may be a question stil existing, and I will say that my comembers of the committee did no agree with the use of the word "prohibitive," but out of supercaution I used Justice Holmes' word because the argument is just as stron whether it is prohibited or not. But if we are to live under a govern ment of undelegated powers, whether it is for 5 years or 10 years o 20 years, so long as a majority desires to impose its power, what be comes of the protection to the minorities under our treaty provisions ey do not have any protection. Therefore. I say that the first thing must do, Mr. Chairman, is to make sure that whatever amendment -enact takes away this power of Congress to enact legislation withconstitutional authority under a treaty. Thank you. rator BRICKER. That was an excellent job, Mr. Rix. The CHAIRMAN. Mr. Hatch? Have you a prepared statement, Mr. TATEMENT OF VERMONT HATCH, NEW YORK, N. Y., MEMBER OF THE NEW YORK AND UTAH BAR ASSOCIATIONS, AND MEMBER OF THE COMMITTEE ON PEACE AND LAW THROUGH UNITED NATIONS Mr. HATCH. No, sir; I have not. Mr. Chairman, and gentlemen of the committee, my name is VerHatch, 14 Wall Street, New York, N. Y. I am a member of the Sew York Bar and the Utah Bar and a member of the committee on e and law through United Nations. Cening as I do after members of the committee, such as Mr. SchTripe and Mr. Rix, I perhaps might be called the crumb collector. going to try and collect a few crumbs and lay them before this mittee. First of all, Mr. Chairman, I wish to express my thanks to the subittee for this opportunity to lay before you a few views that I e formed in the course if my study of this matter. In the hearast May before the subcommittee that preceded this one I gave ony which appears at page 55 of the hearings, and I shall not eat that. I had to do with the preparation of a memorandum which ars at page 517 of that record, and I will ask your indulgence to that memorandum, if you will, incorporated in this hearing. CHAIRMAN. It is so ordered. The material referred to is as follows:) LIK RANDUM IN REPLY TO THE MEMORANDUM OF THE DEPARTMENT OF JUSTICE ON E JOINT RESOLUTION 130, EIGHTY-SECOND CONGRESS, PROPOSING AN AMENDKENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING TREATIES AND EXECUTIVE AGREEMENTS June 19, 1952, the Department of Justice, through the then Solicitor Genthe United States, Philip B. Perlman, filed with the subcommittee of the * Committee on the Judiciary a memorandum entitled as above set forth in 1-23 outilned its objections to every part of the constitutional amendment ed by Senate Joint Resolution 130, as well as the proposed constitutional tient suggested by the American Bar Association. That memorandum Ardingly, the Department opposes any of the suggested amendments to ty power" (p. 2), and the reasons stated in this memorandum, the Department of Justice all of the proposed amendments to the Constitution" (p. 40). reply will answer the memorandum of the Department of Justice only as it applies to the constitutional amendment recomended by the AmeriBar Association through action of its house of delegates on February 26, The Congress of the United States for consideration, and which prodment reads as follows: vasion of a treaty which conflicts with any provision of this Constitution be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it enact under its delegated powers in the absence of such treaty." It would seem that the most logical and helpful approach would be as foll and this memorandum will be divided accordingly. I. The Scope of the Treaty Power Today and the Power of Treaties; III. An Evaluation of the Ultimate Position of the Department of Jus in Its Memorandum and Consideration of Some of Its Objections to American Bar Association's Proposed Amendment. The memorandum of the Department of Justice seems, as will appear, t a plea for ever-expanding Federal power, through the treaty route, over States and over the individual citizens. This treaty route is capable of b used to regulate the everyday relationships between the individual citizen his government, both State and national, in almost limitless fields where Federal Government is incompetent to act aside from the treaty mechan It is already proposed that this mechanism should be used for the creation international crimes with which our citizens might be charged for actions them within the United States and for which they might be triable not by local courts but also by an international criminal court. The draft sta of the proposed International Criminal Court would eliminate both indictm of a grand jury and trial by jury, and fails to afford adequate protection aga the introduction at the trial of the accused of an involuntary confession m by him." Our National Government is and should be one of limited and delegated pow and the issue presented is whether a constitutional amendment is necessary order to preserve the essential balance between Federal power and the power the States, and to protect the individual citizen against the imposition of c and criminal liability and against impingement upon the rights and freedoms the individual citizen by the Federal Government through the exercise of treaty-making power. POINT I. THE SCOPE OF THE TREATY POWER AND THE POWER OF TREATIES As is so well known as to scarcely need reference, the treaty power is confer by article 2, section 2, paragraph 2 of the Constitution upon the President "by a with the advice and consent of the Senate, to make treaties, provided two-thi of the Senators present concur." The power of treaties (the supremacy clause)' is provided for in article second sentence, as follows: "This Constitution and the laws of the United States which shall be made pursuance thereof, and all treaties made or which shall be made under Authority of the United States, shall be the supreme law of the land; and Judges in every State shall be bound thereby, anything in the Constitution laws of any State to the contrary notwithstanding." The distinction between the treaty power and the power of treaties should kept in mind at every stage of any discussion of this subject. The two provisions quoted above, together with the "necessary and prop clause (art. 1, sec. 8, last clause), giving Congress power "to make all laws wh and all other powers rested by this Constitution in the Government of the Un States, or in any department or office thereof," make up the constitutional b ground of the discussion. What is the scope of the treaty power! "At no time during the convention [1787] was there any suggestion t the treaty power should be limited as to scope or subject matter" (Departm of Justice memorandum, p. 5, hereafter referred to as "D. of J. M."). "The framers of the Constitution carefully refrained from stating any lim tton on the scope of the treaty power" (D. of J. M., p. 17). 1 Report of Standing Committee on Peace and Law Through United Nations, Febr 1, 1959, second printing. March 15, 1952. #Genocide Convention, art 1. VI; draft statute for an International Criminal C formulated at Geneva in the summer of 1951, and appearing as Appendix C to the Re of the Committee on Peace and Law, February 1, 1952, p. 31. This draft statute is discussed in articles appearing in the American Bar Journal for August 1952. *We use the phrase "treaty power" to describe the power to make and the scop treaties. We use the phrase "power of treaties" to indicate the consequences of the cise of the treaty power. "As has been noted, the power to enter into treaties was granted by the Constitution without any express limitation as to its scope or as to the subject catter of possible treaties" (D. of J. M., p. 26). "Accordingly, the Supreme Court has uniformly stated that, 'the treaty power the United States extends to all proper subjects of negotiation between our wernment and the governments of other nations. Geofroy v. Riggs (133 U. S. Za 26)'” (D. of J. M., p. 27). Soch treaties could have the force of domestic law if they were self-executing, could be implemented by legislation under the 'necessary and proper' clause" Dof J. M., p. 27). The American Bar Association's proposal would limit this tremendously broad y power not with respect to external affairs, but only with respect to its se to upset the essential balance between Federal power and the powers of De States and as a means of creating internal law imposing civil and criminal 1ty on the individual citizen and impinging on the rights and liberties of the vidual citizens in areas where the Congress could not so do in the absence of a We the Department of Justice quotes (D. of J. M., p. 29) with approval the Seventy-fifth Federalist Paper written by Alexander Hamilton a part the following sentence regarding the treaty power: Though this provision has been assailed on different grounds, with no small e of vehemence, I scruple not to declare my firm persuasion, that it is one ** the best digested and most unexceptionable parts of the plan." [Italics added cate part quoted in D. of J. M.] ourse of its argument clearly indicates that it is not in sympathy with all Chat Seventy-fifth Federalist Paper, for in it and as an argument in favor pting this treaty power, Hamilton said: The power of making treaties is, plainly, neither the one nor the other. It teither to the execution of the subsisting laws, nor to the enaction of new and still less to an exertion of the common strength. Its objects are, conwith foreign nations, which have the force of law, but derive it from the *zations of good faith. They are not rules prescribed by the sovereign to the *tent, but agreements between sovereign and sovereign." [Italics added.] trast this with the language of Mr. Justice Holmes in Missouri v. Holland, US 416, at p. 433 et seq.): The treaty in question does not contravene any prohibitory words be found in the Constitution. The only question is whether it is forbidden by nvisible radiation from the general terms of the tenth amendment. We mart consider what this country has become in deciding what that amendment *ELTSETTEd. * * No doubt the great body of private relations usually fall within the of the State, but a treaty may override its power. Here a national interest of very nearly the first magnitude is involved. It be protected only by national action in concert with that of another [Emphasis added.] Here we find the real point of departure between the protagonists of a Federal Tement practically all powerful through the treaty mechanism and those tain some substance, some meaning in the tenth amendment reading: powers not delegated to the United States by the Constitution, nor proby it to the States, are reserved to the States respectively, or to the The treaty power has always been present in the Constitution, but it is inacsay that "The issues raised by the proposed amendments are not new. of them were considered fully during the drafting and adoption of the titration” (D. of J. M., p. 2). The issues are new, because the circumstances making and the present extent and objectives of treaties are entirely Mutilateral treaties, of the character of the Charter of the United Nations be many proposed multilateral treaties which are growing out of that shent, were unknown in 1787. They are a product of a new concept of world tion. It is proposed to use the treaty power to forward such organiza1d, in furtherance of it, to legislate internally by the treaty mechanism regulation of rights and relationships hitherto regarded as solely domestic htly within the jurisdiction of our States. We may be of law or may be of fact; but the issues on this question of power are of law and fact. They were in 1787 and must today be conagainst the factual backgrounds in connection with which they are preAnd those factual backgrounds have changed so radically since 1787 |