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Seit u change powers to rights?

. That is worth consideration.

the powers in this copy. sa That is right.

ay making power in the Constitution with its contained in article II, section 2,

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e Vutional Legislature and the National Executive

e and exclusive rights vested in Congress by the bave seen, included the exclusive power to make

Legislature should be empowered “to legislate in se incompetent, or in which the harmony of the De exercise of individual legislation," and to negative

its of Union. The Federal judiciary, was to be watch may involve the national peace and harinony." ai Mon, 21-22.)

***** the Federal Government all the authority then ancies of Confederation as well as authority over trade

e Federal judiciary jurisdiction over the "construcwie wwwld have provided that all acts of Congress "and all

bority of the United States shall be the supreme and as those acts or treaies shall relate to the said Si Kevords of the Federal Convention, 243-245.)

** Hamilton would have given the Executive power, de Senate, to make treaties, and would have contained Emeral of the Federal Convention, 292–293.)

Watty hare added to the treaty provisions of the Articles a Federal Supreme Court power to review State court arrand Records of the Federal Convention, 608.)

Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article III, section 2, provides that, The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

So much for the expressed provisions in the Constitution relating to the treatymaking power.

Throughout the years since the adoption of the Constitution there has been general agreement with the statement of Mr. Justice Story that, had the framers of the Constitution done nothing more than to securely vest the treaty-making power in the Central Government, they would have been entitled to immortality and to unending gratitude of the American people.“

Every generation or so, this treatymaking power of the Federal Government comes up for critical analysis and review, especially whenever the President or the Senate or the Supreme Court applies it to a new set of facts in a changing world. Such analysis and review are healthy, for if our basic constitutional principles do not meet modern needs, consideration should always be given to changing them.

The proposals for amendment now before you emanate from two groups. One group desires to severely limit the treatymaking power of the Federal Government by confining it to matters which are not "domestic" or "internal.” It would revoke the doctrine of the case of Missouri v. Holland, which I propose to discuss later. Senator Bricker, as I understand it, does not agree with the views of this first group on this point.

Senator BRĪCKER. At least you ought to say that the two amendments submitted are not in concurrence on that matter.

Attorney General BROWNELL. That is correct. That is probably a more accurate statement, Senator. And I would like the record to show that.

With the arguments of the first.group, I wholly and totally disagree. Rather, I present with approval the statement of the late Chief Justice Charles Evans Hughes:

I take the view which I understand to be that of the Supreme Court that this is a sovereign nation; that the States, in relation to foreign affairs, are not sovereign States; that if this Nation exercises its sovereign power in regulating by agreement its relations to other nations, it must be done through the exercise of the treatymaking power and in that relation there are no States, there is but one country.

Now, I quite agree with the suggestion * * * that, as it has been found in connection with interstate and intrastate commerce, there may be such an intermingling of activities that it would be necessary in order to support the supremacy of the national power to subordinate the local power with respect to a matter of intermingled local and national concern to the exercise of the national power.

In the case of interstate and intrastate commerce where the supremacy of the Federal Government was sustained, it was because, if the interstate rates that diseriminated against interstate rates as established by the Interstate Commerce Commission were allowed to be maintained, then the States would be dominant in the Federal field and the national supremacy would be subordinated within its own field, the national field, to the power of the State. There was no escape from the alternative. Either the national power must be sacrificed to the States or it must be exerted within its field. If it were allowed to be exerted within its field, then it must be supreme, and anything that contravened it must fail.

* *

52 Butler, Treatymaking Power of the United States, 403.

I ask a question there for the

that either one of these amend

at way, shape, or form! Tehet it seems to me a good example angesetly the same control over the

Government that the Federal cameree clause.

Try important because Mr. Finch

the quotation from Chief Justice

or treaty." The legislation to in provide for a treaties.

All of the pri Constitutional sey plan,2 Hami and effective tre to legislate in se intention was, investiture in the power. In resp the full power treated or det

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de sustained in regard to the treatyes under former conditions had been mternational matters that an inter

succeed without embracing the local is headed by Senator John W. Brick

rious study. Senator Bricker price by calling attention forcibly to

of our Government during the last watch it has been claimed deal pri

Fortunately, none of these treaties system did not contemplate having Susirely domestic in their nature.

der's vigorous activity, this trend in

mited. This committee is now faced es

constitutional amendment can be Sie misuse of the treatymaking power

y restricting its legitimate exercise. and group of proponents, my position esitutional system of treatymaking,

to this day, has worked well; and it oponents of change to show a definite sage. That showing is not made by 1 yet ratified or even submitted for wrongly are said to be objectionable.

entions, in various stages of draft by to which objections have been made by

e amendments. If these proposed as they are said to be, I do not think

inds of the Senate, or for that matter went to the Senate. Certainly there is

ning that the President and the Memo are bound by oath to support the Sermine the Constitution. demonstrate later in this discussion that

do adopt a treaty which seeks to over

ned to our citizens by the Constitution, Sil of Rights, the judicial holdings of our

te clearly that the treaty provision would

a

be stricken down. But, if this be true, the proponents of the change argue, why not amend the Constitution to say so? My answer is that no one has yet succeeded in devising language to amend the Constitution to guard against such a hypothetical treaty provision which does not also jeopardize the Federal Government's necessary and proper treatymaking powers.

I would now like to consider with you the four substantive sections of S. J. Resolution 1 and the corresponding provisions of S. J. Resolution 43.

SECTION 1. A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect.

(The corresponding provision in S. J. Res. 43 reads :) A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect.

This amendment in section 1 is said to be necessary in order to establish that a treaty is not superior to the Constitution, particularly the provisions of the Bill of Rights. The possibility of the contrary, , advanced by the sponsors of the constitutional amendment, is derived from a crucial difference, as they see it, in the phraseology of article 6, clause 2, the supremacy clause, where it is provided that the Constitution and the laws of the United States made in pursuance of the Constitution and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land. It is said that laws in pursuance of the Constittuion, as distinguished from treaties under the authority of the United States, place laws and treaties on a different plane in regard to the superiority of the Constitution. In support, reference is made to what Mr. Justice Holmes said for the Supreme Court in Missouri v. Holland, in the course of reaching the conclusion that the 10th amendment was not a limitation upon the treaty power, which is vested expressly by the Constitution in the Federal Government. The Holmes statement in Missouri v. Holland was:

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. But Holmes immediately qualified this by saying:

We do not mean to imply that there are no qualifications to the treatymaking power

The treaty in question does not contravene any prohibitory words to be found in the Constitution."

* 252 U. S. 416 (1920). * The Supreme Court reached a similar conclusion 21 years later in holding that the 10th amendment was not a limitation on the Federal commerce power, United States v. Darby, 312 C. S. 100, 123-124 (1941).

• The whole of this quotation reads: "We do not mean to imply that there are no qualifications to the treatymaking power; but they must be ascertained in a different way It is obvious that there may be matters of the sharpest exigency for the national well-being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewliere reside in every civilized government is not to be found (Andrews v. Andrew8, 188 U. S. 14, 33). What was said in that case with regard to the powers of the States applies with equal force to the powers of the Nation in cases where the States individually are incompetent to act. We are not yet discussing the particular case before us but only are considering the validity of the test proposed. With regard to that, we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must

realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created #pard has cost their successors much sweat and blood

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... terting to the difference in descriptive

airs uni for treaties in article 6, clause 2, of the La mis merely alluded in passing, sight has

nimei ference, and hence its true significance. Hi Convects of 1787 the first aspect of the treaty ne prigusion was that which became ultimately nemacy case. The Virginia resolutions had pro

tai Lerrure have power to negate State laws e Lucies of Crnen. An amendment by Dr. Franklin po pegic State laws contravening "any treaties subtuttur:cy of the Union," and the proposal was Piloase or dissent.1

Rwer to negate State legislation was * Pike provision argued that it would be ofTell this state law that could be negated would

INTYY. if necessary, could be repealed by a diety in place of this provision, there was pro

Newiding that all legislative acts of the ; .' made and ratified under the authority of

the supreme law of the respective States, bili v States or their citizens and inhabitants,

in puhe State judiciary. This proposal was VETT clause was extended to "treaties made

ar the authority of the United States, so innering the force of treaties preexisting.'

Betonstitution wanted to be sure, and made " de supremacy clause extended not only to

future be made under the new ConstituRich had in the past been made under the

They therefore said “treaties made or

Ce binding. To have limited the clause only *. Vad of the new Constitution would have de

" 12

Hy was done because of the British claims

"ORW\FIL. That is right.
Saite the principal concerns was the 1783 treaty

t's just mentioned by Senator Bricker, and Vi pral Government to comply with its obligaminentrance of a number of the States.14 The w protected British creditors and guaranteed

or prosecutions of persons on account of comery War. The status of this treaty was ** before the new Supreme Court, in Ware

The case before us must be considered in the light of

in that of what was said a hundred years ago. The telephone any prohibitory words to be found in the Constitulity it is forbidden by some invisible radiation from the

We must consider what this country has become Den spiserved" (252 U. S. 433-434).

vention, 47, 54. 61. home convention, 21-22, 27-29. shini kunvention, 417.

wpress 781-874.

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