The Senate is confronted by no such dilemma in the legisla process. It has complete freedom of action in framing language the protection of constitutional rights. If a law does deny or abri some constitutional right, the Supreme Court will strike it do Never in our history, however, has the Supreme Court held any pr sion of any treaty unconstitutional. The reason is that article paragraph 2, provides that laws of the United States "shall be supreme Law of the Land" only if made "in Pursuance" of the Con tution. Treaties, on the other hand, become the supreme law of land merely by virtue of being made "under the authority of United States," which is an entirely different thing.

This difference in language was noted in 1920 by the Supreme Co in Missouri v. Holland (252 U. S. 416). That case upheld the vali of legislation by Congress to implement the Migratory Bird Tre of 1916-legislation which the Court assumed was unconstitutiona the absence of a treaty. Mr. Justice Holmes intimated that "un the authority of the United States" might mean nothing "more t the formal acts prescribed to make the convention."

Opponents of any treaty clause amendment say, however, that President and the Senate should be trusted not to make any tre which authorizes what the Constitution forbids. This argument veals a shocking ignorance of constitutional history. The Bill Rights was added to the Constitution because the people did not tr the President and the Congress with unlimited power. The Presid and the Senate, even assuming that they could foretell how a tre will be construed by the courts, are deserving of no greater trust. 7 American people resent the argument that rights which they reg as God-given and inalienable can be alienated by the President a two-thirds of the Senate present and voting.

In one case, the President and Senate deliberately achieved by tre a result which the Constitution expressly forbid. The Supreme Co in 1923 held that the 18th amendment prohibited the importation intoxicating liquor under seal into the territorial waters of the Uni States, Cunard S. S. Co. v. Mellon (262 U. S. 100). To overcome t effect of the 18th amendment, President Coolidge negotiated in sec and the Senate in 1924 approved in secret, a treaty authorizing su importation on British ships. The validity of the treaty was ch lenged in one case which was dismissed on procedural grounds, and was never further interpreted.

So far I have discussed the need for section 1 of the joint resoluti Section 4 places the same limitation on Executive agreements. T need for such limitation arises from the fact that the Supreme Co has held that Executive agreements, even those not approved Congress, become the supreme law of the land. In United States Pink (315 U. S. 203 (1942)), the Court said:

A treaty is a "law of the land" under the supremacy clause *** of the C stitution. Such international compacts and agreements as the Litvinov assi ment have a similar dignity (p. 230).

The Pink case involved the distribution of assets of the New Yo branch of a Russian insurance company. In 1918 Russia nationaliz the business of insurance, but the State of New York refused to gi the decree any extraterritorial effect. No one questioned New Yor power to make that decision. In 1925, Pink, the New York supe

Set of insurance, took possession of the insurance company's Caims of domestic creditors were paid in full. The New Court of Appeals directed payment of the balance to foreign

..was the situation immediately before the Litvinov assignment. creditors were entitled to the protection of the fifth amendBoth Russia and the United States were powerless to deprive of that property. However, the Supreme Court held that an eat between Franklin Roosevelt and Maxim Litvinov canct property rights otherwise protected by the fifth amendment public policy of the State of New York.

ef Justice Stone, for himself and Mr. Justice Roberts, dissented Pink case. The Chief Justice assumed, however, that property f American and foreign creditors could be divested by treaty * Executive agreement approved by the Congress, although Lot willing to recognize such power in an assignment not red by either House of Congress.

Curtain countries would no doubt welcome a new Rooseveltagreement to make their confiscatory decrees effective in the States, private-property rights to the contrary notwith

4 of Senate Joint Resolution 1 would also prevent Executive ents of the type made at Yalta. That need requires no elaborahere. The President has spoken on that at a recent date. on 3 of Senate Joint Resolution 1 would make treaties nonuting in their effect on domestic law. At times, it is humanly bie for a Senator to know whether or not and to what extent may supersede Federal and State laws. In 1833, for example, Spreme Court held to be self-executing a treaty which it had -self-executing 4 years before. United States v. Percheman 4.31 (U. S. 1833)); Foster v. Neilson (2 Pet. 253 (U. S. 1829)). e celebrated Fujii case in California is a more recent reminder aties may have far-reaching and unintended consequences as a f the American Constitution's unique treaty supremacy clause. termediate California court held that the human rights pros of the U. N. Charter, articles 55 and 56, were self-executing. i Cifornia (217 P. (2d) 418, 218 P. (2d) 595 (1950)). The Court of California held they were not (242 P. (2d) 217 The issue is still in doubt. If the Supreme Court of the tates should adopt the reasoning of the lower California thousands of Federal and State laws will be nullified. Of the rators who voted for the U. N. Charter in 1945, I doubt if one Fed any such result.

at case was discussed at length, as the chairman and members Omittee will remember, on the floor of the Senate by former Donnell of Missouri. I remember very definitely the discusat took place on the floor that day.

Plip Jessup and like-minded international lawyers contend U. N. Charter can be modified by interpretative resolutions by a majority vote of the General Assembly. The late Gensel of the U. N., Abraham Feller, conceded that the U. N. er does not mean today what it meant in 1945. All treaties g domestic law must be made non-self-executing to avoid unin

tentional alteration of the rights of the American people under Fede and State laws.

So far, I have discussed sections 1, 3, and 4 of the joint resoluti The language of these sections is paralleled by comparable langu in the American Bar Association draft. With the addition of just word I could support the American Bar Association proposal, and have discussed this with the representatives of the American 1 already and asked that they give further consideration to it. I wo add to the second sentence of section 1 of the ABA proposal the wo "multilateral" before the word "treaty." With that addition, the would be no difficulty in making bilateral treaties of friendship, co merce, and navigation. Even so, I am inclined to prefer the langua of Senate Joint Resolution 1 with such improvements as this co mittee may be able to make. For example, the word "protected" mig be better than "enumerated" in sections 1 and 2. That suggestion for the purpose of protecting those bilateral agreements which a necessary for the relationships, the amicable relationships, of o Nation to other nations. One example might be the Migratory Bi Treaty that I mentioned a moment ago. Another might be the rig to sue and be sued in the courts of the country. Another might be t rights of ownership of property. Another might be, and I think this because it is presented, the right to use automobile tags of t respective countries in this country in consideration of our right do the same thing in the other countries. This is particularly impo tant with so many of our boys in foreign countries at the present tim I now come to section 2 of the joint resolution, and I particular wish that the representatives of the American Bar Association wou give consideration to this section. There is no comparable language The American Bar Association proposal. In my judgment, section is necessary for the preservation of American sovereignty.

Section 2 attempts to solve the deep-seated problem which Judg Florence E. Allen of the Sixth Circuit Court of Appeals has describe in these words and I will quote in just a minute.

Judge Allen is in the Sixth Circuit Court of Appeals. She serve for many years on the Supreme Court of the State of Ohio and is very able judge and has given extended consideration to these inte national treaties, particularly those in regard to those of ILO.

Mr. McGrath is here, and I think he will give particular attentio to that at a later moment. I quote from her book. By the way that book is quite a comprehensive one and is well worth reading b any member of this committee. It is thoroughly explorative of th ILO Treaty. She particularly pays attention to the internationa labor treaties which are being drafted at the present time.

Mr. HOLMAN. Mr. Chairman, we will be glad to furnish copies o that book at the expense of the American Bar Association. It is very small book which you can put in your pocket.

Senator BRICKER. Thank you, Mr. Holman. I have just one cop of it and I have not been able to find any others.

I quote now:

The root of the difficulty lies in the lack of demarcation between domesti and international legislation. A line must be drawn beyond which the inter national organizations know they cannot pass. The United Nations should draw the line in a resolution of the General Assembly and should facilitate a Judgment on the question by the International Court.

United States should draw the line by amendment to the Federal Con(Allen, The Treaty as an Instrument of Legislation (1952) pp. 104,

1e of demarcation between international affairs and matters rely domestic concern was drawn by this language in article II, aph 7, of the U. N. Charter:

thing contained in the present charter will authorize the United Nations rene in matters which are essentially within the domestic jurisdiction Any state

U. N. and its specialized agencies have not respected the limis on their authority. The members of this committee will reer at the time the United Nations Charter was under consideraat that clause was debated very extensively. I think there was er presented at the time by Secretary Stettinius to the effect

United Nations Charter would be limited in their consideraari never would they in any way interfere with domestic rights. HLMAN. I have a copy of that letter. ator BRICKER. I doubt very much, Mr. Chairman, if the treaty ever have been ratified by the Senate of the United States if ad not been this provision and the assurance of the Secretary

The specialized agencies have prevented the International of Justice from deciding what matters are essentially within estic jurisdiction. As Judge Allen makes clear in her book,

of the world is endangered by the U. N.'s ambition to superand control the purely domestic affairs of its members. Section resolution makes article II, paragraph 7, of the U. N. Charter -e insofar as the United States is concerned. In fact, it is the same language that is used in the Charter.

taman rights essentially within the domestic jurisdiction? Dr. Jessup and many others who have represented us at the U. N. No." If that is true, then nothing is essentially within the e jurisdiction. Those who oppose the purpose of section 2 eve that the relationship between the American people and * Government is not purely a domestic matter.

on 2 would prevent Ünited States participation in world or al government by treaty or by less formal agreements. In this I do not believe the American Bar recommendation goes far

Philip Jessup, for example has explained how to use-and Tery skillful at this, Mr. Chairman-the U. N. as an instrument government without raising any conflict with the Constituw.thout invading any of the reserved powers of the States. have suggested that the United Nations be given the power to duals. There would seem to be no conflict with the Constituf the power to tax were shared with the Congress. Moreover, er to tax would not invade the reserved powers of the States. heless, the power of taxation is a matter essentially within e jurisdiction and would, therefore, be prohibited by the lanof section 2 of Senate Joint Resolution 1.

ible spokesmen for the United World Federalists and the :: Union movement realize that the spirit of the Constitution, *he letter, requires that the United States participation in world

al government be authorized, not by treaty, but by constituendment. In fact, when I debated the Atlantic Union issue

last year with former Justice Owen Roberts, he endorsed my ame ment. If you remember, Justice Roberts was a former member the Supreme Court who retired and he has now taken the leaders in the Atlantic Union movement. This is what he said in that deba

In the United Nations, they've set up committees which are just commit appointed by the United Nations Organization. Those committees are subi ting treaties that affect the conduct of individual citizens in the countries. N my liberties and my rights can't be affected except I have a chance to vote, I don't want any ad hoc committee specifying what my rights are * * S agree entirely with the Senator.

*

That was in the formal debate that we had. And prior to the ti that we began this discussion he told me definitely that he felt t the amendment which we had submitted then should be adopted the United States, recognizing always that what he was seeking h to be done by constitutional amendment and should not be done indirection or stealth as they are attempting now through certain the subcommittees of the United States.

Mr. HOLMAN. That could be done by constitutional amendment. Senator BRICKER. By constitutional amendment rather than treaty.

Of course, the State Department of the previous administrati contended that the U. N. draft Covenants on Human Rights w great humanitarian treaties, and that the American people sho cheerfully submit their political, civil, and economic rights to Unit Nations definition, supervision, and control. But Dr. Charles Malik, of Lebanon, who succeeded Mrs. Roosevelt a year ago as Cha man of the U. N. Human Rights Commission, has warned that rece amendments to the Human Rights Covenants "responded for the m part more to Soviet than to western promptings." He attribut this shocking fact to a "materialistic revolution" within the Hum Rights Commission brought about by "the increasing impact Marx." Then he went on to say it was due further to the unimagin tiveness of the western countries. That will be found in Malik, Hum Rights in the United Nations, United Nations Bulletin, September 1952.

Let us proceed to another aspect of this treatymaking authorit The International Labor Organization is one of the U. N.'s specializ agencies. I might say there are some 200 treaties at the present ti being put into form by these various subagencies that will be su mitted ultimately, that is the purpose of it, to the United States f ratification.

The modest ambition of this International Labor Organization to become the economic overseer of all humanity. The ILO Confe ence is officially described as a "world parliament for labor and soci questions." ILO treaties deal with such purely domestic problems social security, minimum wages, compulsory health insurance, a labor-management relations. There is very little in all these treati which "conflicts" with the Constitution, or which encroaches on Stat rights under the 10th amendment. Thus they would not be pr hibited by the American Bar Association proposal, I fear. Neverth less, ILO treaties of the type mentioned concern subjects in whi no international organization has any legitimate concern of any kin or character.

Motherhood would become a subject of international concern the terms of a treaty already adopted by the ILO Conference. T