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 BRICKER. At least you ought to say that the two amend

ments 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 disRather, 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 treaty making 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 discriminated 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.

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

or treaty." T legislation to provide for a treaties.

All of the Constitutiona sey plan,2 Ha and effective. to legislate in intention was. investiture in power. In re the full pow treated or det Senator Bi Attorney ( Senator BI. Attorney (. The basic should be sta which provi shall have Pov Treaties, prov Treaties so n act of Congre tion 8, empo

To make all la
the foregoing
Government of
As a corolla

No State shall
and further
Congress

into any Agree Article VI

This Consti Pursuance the Authority of:

1 The Virginia should enjoy, resp Articles of Confed treaties, and that all cases in which United States may any State law co empowered to deck (1 Farrand, Reord

2 The New Jerse vested in the Con and commerce; it tion of any treaty treaties made and law of the respect States or their citi 3 The plan subm with the advice a a sunremacy claus The Pinckney of Confederation decisions involving

eaded by Senator John W. Brickserious study. Senator Bricker ce by calling attention forcibly to four Government during the last

it has been claimed deal priFortunately, none of these treaties sem did not contemplate having rely domestic in their nature. ser's vigorous activity, this trend in

d. This committee is now faced constitutional amendment can be e misuse of the treatymaking power restricting its legitimate exercise. group of proponents, my position tional system of treatymaking, this day, has worked well; and it onents of change to show a definite e. That showing is not made by vet ratified or even submitted for rongly are said to be objectionable. tions, in various stages of draft by which objections have been made by

amendments. If these proposed Jus as they are said to be, I do not think hirds of the Senate, or for that matter ent to the Senate. Certainly there is ming that the President and the Mem

are bound by oath to support the ermine the Constitution.

demonstrate later in this discussion that Se do adopt a treaty which seeks to overmed to our citizens by the Constitution,

of Rights, the judicial holdings of our clearly that the treaty provision would

y of International Law, 194-195.

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 U. 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 somewhere reside in every civilized government' is not to be found (Andrews v. Andrews, 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

andy, Terting to the difference in descriptive e laws and for treaties in article 6, clause 2, of the evalca Holnes merely alluded in passing, sight has en of the diference, and hence its true significance. El Convection of 1787 the first aspect of the treaty de up for discussion was that which became ultimately Sremacy clase. The Virginia resolutions had proSacional Legislature have power to negate State laws

Licies of Union. An amendment by Dr. Franklin ver to device State laws contravening "any treaties sube auiority of the Union," and the proposal was o without decate or dissent.10

eroposed power to negate State legislation was pressat ze the provision argued that it would be ofat a State law that could be negated would e weerry or, if necessary, could be repealed by a kerer igy, in place of this provision, there was proase providing that all legislative acts of the

es made and ratified under the authority of de the supreme law of the respective States, usic States or their citizens and inhabitants, the State judiciary. This proposal was

racy clause was extended to "treaties made

r the authority of the United States, so cerning the force of treaties preexisting." 12 Constitution wanted to be sure, and made ace supremacy clause extended not only to future be made under the new Constituwch had in the past been made under the

They therefore said "treaties made or ae binding. To have limited the clause only ce of the new Constitution would have de

az was done because of the British claims

FLL. That is right. e of the principal concerns was the 1783 treaty just mentioned by Senator Bricker, and Pal Government to comply with its obligacitrance of a number of the States.14 The protected British creditors and guaranteed or prosecutions of persons on account of emary War. The status of this treaty was e before the new Supreme Court, in Ware

x and has cost their successors much sweat and blood The case before us must be considered in the light of in that of what was said a hundred years ago. The e any prohibitory words to be found in the ConstituAs it is forbidden by some invisible radiation from the We must consider what this country has become hes reserved" (252 U. S. 433-434). Convention, 47, 54, 61. ale Convention, 21-22, 27-29. - Podes: Convention, 417.

བས ས པང་གེ་འི་ཆ་

Carine Congress 781-874.