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Giator Watkins. Did you say Congress had been given that

-r! Vr. Rix. That is a necessary attribute of this power that the er of the United Nations under articles 55 and 56 binds us to * Die human rights in every way we can. I think there is some

ce in 36 to the enactment of such legislation as made without ng effect to promote it to such extent as necessary to carry

intent of this article 56. Sw, if you can conceive, gentlemen, any broader powers than al give to any government or to Congress to enact legislation

tural, social, economic, civil, and political rights, if you gen*nare dealing with any other rights than those, I would like Cut what they are in your legislation. And, in our opinion, that

has conferred upon Congress now the unlimited power which * Linki and his associates in the Labor Committee of the House sri they had and stated when they submitted a comprehensive

git bill to the Congress for enactment, because in the report *** ut committee to the House the statement was made that this

s not require any constitutional authority for its enactment s+the power is based on the Charter of the United Nations. That Torting at the time, but it is the opinion of our committee that - 925 exists and at the present time Congress has the unlimited 3. to legislate under those provisions. 1. just see where that takes us. Suppose anyone of these lawyers bis a pending case in the courts or if Congress enacts an act one of the lawyers takes up to the courts to determine its consti

ality, to which will the court look for the source of the authority, -stitution of the United States or to the Charter of the United

! You have to have one little book with the Constitution of Tited States on the one hand and the Charter of the United 13,3 to determine the source of that act?

e the Supreme Court should hold or the lower court should ..there is no provision in the Constitution of the United States

tities that legislation and the Supreme Court of the United mays that is justified under the Charter of the United Nations i comes within one of these purposes?

W3TKINS. What will the effect be on something that is ... in existence by the adoption of the amendment after it has

W. HUMAX. This will take care of it.
W: Ril. I would hardly dare to answer the question.

WATKINS. It is already law now. W: HLAX. Yes, but Congress has not legislated yet. Your legiswould be banned by your constitutional amendment.

BRICKER. You must comply with the Constitution. K-H DAX. That is right. To that extent it is retroactive. ** * Rr. If the Charter of the United Nations was ratified before

tent of the legislation, the question would arise as to present ... But that is a question which we have not touched yet and which ist probably have to touch, whether or not this whole amendment

are a retroactive feature. S... BRICKER. Three judges of the Supreme Court have already

in the United Nations for their source of authority in the Steel

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case. If two more had agreed with them, then we would be face et

potet 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? Whi would be the effect on the world if we taken an act to repudiate the th

That power right now? I say that we must be sure that in this amendmer that we are proposing that the power will exist, or that a situatio will be covered which removed the power of Congress to legislat beyond its express powers, or our system of delegated government gok

BUONT out of the window.

Going back to that question of what that lawyer would do in th AND VI case of constitutionality, suppose the Supreme Court of the Unite TE ON States decided that the legislation was invalid under the Constitu tion, and also invalid under the Charter of the United Nations, an our Nation made a point of endeavoring to secure, for instance, a Ikar advisory opinion from the Court of International Justice, and thirt Court of International Justice should hold contrary to the opinio Street of the Supreme Court of the United States? Where would we be i de la the opinion of the world!

Gentlemen, these are unheard of questions, but they are here an for me they must be met in some way.

I per Now, I have asked in this article two questions: one, if we can permi.. the situation to exist that now exists, can the independence of the ju diciary be maintained ! We fought hard in the early days to secure th position of the Supreme Court by which it could declare uncon stitutional any acts of Congress. If a superpower should exist, or i 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 enac the legislation, what becomes of our independence of the judiciary

Senator WATKINS. They have their independence, but their decree: would not amount to anything.

Mr. Rix. That is it.

Senator WATKINS. There would be an authority higher than the Constitution.

Mr. Rix. That is right.

Another question I ask is what protection can minorities have 11,5 131 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-Depart ber of a minority appealing to the Constitution of the United States. Pili I grant that the word “prohibited” which was used by Mr. Justice Judic. Holmes in the Migratory Bird case may be expanded upon to mean stions that if any power is prohibited by the Constitution of the United Reso

) States, such as the power of Congress to enact legislation affecting religion or freedom of the press, that there may be a question still barmen existing, and I will say that my comembers of the committee did not agree with the use of the word “prohibitive,” but out of supercaution I used Justice Holmes' word because the argument is just as strong whether it is prohibited or not. But if we are to live under a government of undelegated powers, whether it is for 5 years or 10 years or are 20 years, so long as a majority desires to impose its power, what becomes of the protection to the minorities under our treaty provisions?

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Tips do not have any protection. Therefore. I say that the first thing
Diast do, Mr. Chairman, is to make sure that whatever amendment
To stact takes away this power of Congress to enact legislation with-
: vostitutional authority under a treaty.
Trator BRICKER. That was an excellent job, Mr. Rix.
The CHAIRMAN. Mr. Hatch? Have you a prepared statement, Mr.

Tuank you.


L-. Hatch. No, sir; I have not.

1. Chairman, and gentlemen of the committee, my name is Ver:: Hatch, 14 Wall Street, New York, N. Y. I am a member of the # York Bar and the Utah Bar and a member of the committee on

and law through United Nations. (sng as I do after members of the committee, such as Mr. Sche and Mr. Rix, I perhaps might be called the crumb collector. ... going to try and collect a few crumbs and lay them before this Littee.

ist of all, Mr. Chairman, I wish to express my thanks to the sub***.ttee for this opportunity to lay before you a few views that I wie formed in the course if my study of this matter. In the hearsast May before the subcommittee that preceded this one I gave econy which appears at page 55 of the hearings, and I shall not

ei that. I had to do with the preparation of a memorandum which rein at page 517 of that record, and I will ask your indulgence to Seebat memorandum, if you will, incorporated in this hearing. T-CHAIRMAN. It is so ordered. Le material referred to is as follows:)


Jobe 19. 19.52, the Department of Justice, through the then Solicitor Genthe United States, Philip B. Perlman, filed with the subcommittee of the

Elkemittee on the Judiciary a memorandum entitled as above set forth in *-* tibed its objections to every part of the constitutional amendment od tog Senate Joint Resolution 130, as well as the proposed constitutional

vent suggested by the American Bar Association. That memorandum 1 *rdingly, the Department opposes any of the suggested amendments to Sety power" (p. 2), and

the reasons stated in this memorandum, the Department of Justice mail of the proposed amendments to the Constitution” (p. 40). 14 diy will answer the memorandum of the Department of Justice only ***** it applies to the constitutional amendment recomended by the Ameri

Asariation through action of its house of delegates on February 26, aibe Congress of the United States for consideration, and which proBremendment reads as follows:

xion of a treaty which conflicts with any provision of this Constitution * be of any force or effect. A treaty shall become effective as internal

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law in the United States only through legislation by Congress which it co the power enact under its delegated powers in the absence of such treaty."

2017 espressi It would seem that the most logical and helpful approach would be as follo'=x D. of J and this memorandum will be divided accordingly.

1. The Scope of the Treaty Power Today and the Power of Treaties; This to all

II. The Suggestions of the American Bar Association as They Affecti Treaty Power; and

). III. An Evaluation of the Ultimate Position of the Department of Justice tbe for in Its Memorandum and Consideration of Some of Its Objections to ze op tezisla

American Bar Association's Proposed Amendment. The memorandum of the Department of Justice seems, as will appear, to a plea for ever-expanding Federal power, through the treaty route, over

I to States and over the individual citizens. This treaty route is capable of be

bulance used to regulate the everyday relationships between the individual citizen a

as of crea! his government, both State and national, in almost limitless fields where Federal Government is incompetent to act aside from the treaty mechanis

whered It is alrendy 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 on of Justie by local courts but also by an international criminal court. The draft statı Federalist 1 of the proposed International Criminal Court would eliminate both indictm regarding of a grand Jury and trial by jury, and fails to afford adequate protection agai! the introduction at the trial of the accused of an involuntary confession ma scruple not by him."

Our National Government is and should be one of limited and delegated powe and the issue presented is whether a constitutional amendment is necessary order to preserve the essential balance between Federal power and the powers - wieralist the States, and to protect the individual citizen against the imposition of ciner, Hai and criminal liability and against impingement upon the rights and freedoms treaties the individual citizen by the Federal Government through the exercise of t. ltcit of treaty-making power.

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POINT I. THE SCOPE OF THE TREATY POWER AND THE POWER OF TREATIES As In so well known as to scarcely need reference, the treaty power is conferr by article 2, Noction 2, paragraph 2 of the Constitution upon the President “by a with the adiice and consent of the Senate, to make treaties, provided two-thir of the Senators present concur.”

The power of treaties (the supremacy clause)' is provided for in article 1 Necond sentenco, as follows:

"Thin (Sonstitution and the laws of the United States which shall be made pUrNuance thereof, and all treaties made or which shall be made under t authority of the United States, shall be the supreme law of the land ; and t. Jungen in every siate shall be bound thereby, anything in the Constitution Inws of any since to the contrary notwithstanding."

The diminction between the treaty power and the power of treaties should kop in mind ai every stage of any discussion of this subject.

The two proviminin quoted above, together with the "necessary and prope claume (art. I, moc N lant clause), giving Congress power "to make all laws whic and all other power'n vented by this Constitution in the Government of the Unite Ninton, or in any department or office thereof," make up the constitutional bac Around of the lineumon. What is the scope of the treaty power!

"At no time during the convention (1787) was there any suggestion the change the truly power would be limited as to scope or subject matter” (Departmelder of Mund te memorandum pa, horeafter referred to as “D. of J. M.").

"The framers of the Worlution carefully refrained from stating any limits tton on the cope of the treaty power" (D. of J. M., p. 17).

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Report of Nanding Committee on Peace and Law Through United Nations, Februai min 1, 19, Necond printing March 13. 1959

lenociate ('invention, art i VI; draft statute for an International Criminal Cou formulated at Geneva in the summer of 1951, and annearing as Appendix. C to the Renovely of the committee on Prace and LW, FHbruary 1, 1952. p. 31. This draft statute is full di cummed 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 scope trenties We use the phrase "power or treaties" to indicate the consequences of the exe d op cine of the treaty power',

*As has been noted, the power to enter into treaties was granted by the recitation without any express limitation as to its scope or as to the subject uiter of possible treaties" (D. of J. M., p. 26).

Accordingly, the Supreme Court has uniformly stated that, the treaty power y the United States extends to all proper subjects of negotiation between our ***Dent and the governments of other nations. Geofroy v. Riggs (133 U. S. 236)** (D. of J. M., p. 27). Teh treaties could have the force of domestic law if they were self-executing,

ald be implemented by legislation under the 'necessary and proper clause" DJ. J., p. 27). De American Bar Association's proposal would limit this tremendously broad

y power not with respect to external affairs, but only with respect to its to us set the essential balance between Federal power and the powers of Yates and as a means of creating internal law imposing civil and criminal

ty on the individual citizen and impinging on the rights and liberties of the cerdaal citizens in areas where the Congress could not so do in the absence of a

le the Department of Justice quotes (D. of J. M., p. 29) with approval bc the Seventy-fifth Federalist Paper written by Alexander Hamilton a part the following sentence regarding the treaty power:

zborzh this provision has been assailed on different grounds, with no small Son of Tehemence, I scruple not to declare my firm persuasion, that it is one ** best digested and most unexceptionable parts of the plan." [Italics added Imate part quoted in D. of J. M.)

vurse of its argument clearly indicates that it is not in sympathy with all 1 har Seventy-fifth Federalist Paper, for in it and as an argument in favor

opting this treaty power, Hamilton said: In priser of making treaties is, plainly, neither the one nor the other. It ► Deither 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, con***h foreign nations, which have the force of law, but derive it from the

Os of good faith. They are not rules prescribed by the sovereign to the , but agreements between sovereign and sovereign." [Italics added.) 1.**24 his with the language of Mr. Justice Holmes in Missouri v. Holland, ..(S 416, at p. 433 et seq.):

"The treaty in question does not contravene any prohibitory words

found in the Constitution. The only question is whether it is forbidden by monsible radiation from the general terms of the tenth amendment. We

msider what this country has become in deciding what that amendment HEI TRETEd.

No doubt the great body of private relations usually fall within the *** the State, but a treaty may override its power.

a national interest of very nearly the first magnitude is involved. It bor protected only by national action in concert with that of another

[Emphasis added.] om te find the real point of departure between the protagonists of a Federal

rent practically all powerful through the treaty mechanism and those "MAD some substance, some meaning in the tenth amendment reading:

bers not delegated to the United States by the Constitution, nor pro**De it to the States, are reserved to the States respectively, or to the autraty power has always been present in the Constitution, but it is inac"..) uy that “The issues raised by the proposed amendments are not new. We are them were considered fully during the drafting and adoption of the ****0" (D. of J. M., p. 2). The issues are new, because the circumstances ***s making and the present extent and objectives of treaties are entirely Multilateral treaties, of the character of the Charter of the United Nations

muy proposed multilateral treaties which are growing out of that ***, were unknown in 1787. They are a product of a new concept of world

pin. It is proposed to use the treaty power to forward such organiza:15. in furtherance of it, to legislate internally by the treaty mechanism pulation of rights and relationships hitherto regarded as solely domestic

s within the jurisdiction of our States. Smay be of law or may be of fact; but the issues on this question of 47 per are of law and fact. They were in 1787 and must today be con

zainst the factual backgrounds in connection with which they are preAnd those factual backgrounds have changed so radically since 1787

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