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v. Hylton, decided in 1796.15 The Court held that the treaty of 1783 overrode Virginia wartime legislation discharging indebtedness to British creditors, also that the treaty operated to revive a debt owed by an American citizen. Similar holdings in the early 1800's were made by the Court in Hopkirk v. Bell, 16 involving a State statute of limitations, and Higginson v. Mein, involving State confiscation of property of a British subject. Still other and later cases sustained both the pre-1789 and the post-1789 treaties, in protecting alien ownership and transfer of real property.18

In none of these cases, nor in any case decided by the United States Supreme Court involving the construction or effect of a treaty, can one find or discern an intention or purpose to regard a treaty as above the Constitution. On the contrary, the Court has repeatdly emphasized the subordinacy of treaties to the Constitution. · In Geofroy v. Rigg: 19 the Court said: It would not be contended that it (the treaty power) extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States * * *.

In Doe et al. v. Braden,20 the Court said:

The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provision, unless they violate the Constitution of the United States.

In the Cherokee Tobacco, 21 the Court said: It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government.

In Missouri v. Holland, 22 the case which is allegedly the motivating force for the proposed amendment-one of the proposed amendments at least—the Court said:

We do not mean to imply that theer are no qualifications to the treatymaking power. * *The treaty in question does not contravene any prohibitory words to be found in the Constitution.

In United States v. Minnesota, 23 the Court said: Of course, all treaties and statutes of the United States are based on the Constitution; * * * The decisions of this Court generally have regarded treaties as

16 3 Cranch 454 (1806).
15 3 Dall. 199 (1796).
17 4 Cranch 415 (1808).

28 E. g., Orr v. Hodgson (4 Wheat. 453 (1819)); Society for the Propagation of the Gospel V. New Haven (8 Wheat. 464 (1823)) ; Fairfax's Devisee v. Hunter's Lessee (7 Cranch 602, (1813)).; Chirac v. Chirac (2 Wheat. 259 (1817)); Hauenstein v. Lynham (100 U. S. 483 (1879)).

11 133 U. S. 258 (1890). The whole of the quotation reads : “The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its departments, and those arising from the nature of the Government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenicorth Railroad Co. v. Lowe (114 U. S. 525, 541). But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton (3 Dall. 199); Chirac v. Chirac (2 Wheat. 259) ; Hauenstein v. Lynham (100 U. S. 483); 8 Opinions Attys Gen. 417; The People v. Gerke (5 California 381)."

30 16 How. 635, 657 (1853).
11 11 Wall. 616, 620-621 (1870).
23 252 U. S. 416, 433 (1920).
23 270 C. S. 181, 207- 208 (1926).

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by treaty or executive agreement of the essential liberties guaranteed by the Bill of Rights or by the Constitution as a whole.

Enactment of an amendment confirming that which is already the law would be a most unusual act in our constitutional history. Except for the first 10 amendments, which for all intents and purposes were contemporaneously adopted as part of the original organic act, each of the subsequent amendments to the Constitution has been adopted to meet an existing unequivocal deficiency or need. Not only is there a paucity of legal materials to make a case for the amendment, but it is significant to note from the hearings held in the past and the literature on the subject that the sponsors of Senate Joint Resolution 1 are not seriously complaining about any treaty heretofore adopted by the United States. The complaints are addressed to the possibility that the United States might in the future consider adopting certain treaties or conventions, such as the human rights covenants, the freedom of information conventions, and the statute of an international criminal court, which are either in draft stage before certain bodies of the United Nations, or which have little chance of submission for adoption by the executive branch of this Government based on pronouncements already made by representatives of the United States.

But more than being unusual and unprecedented, an amendment of the Constitution, which purports to be confirmatory or declaratory of that which is already the law, may be unexpectedly damaging: Reckoning, as we must, with the justifiable tendency of courts and others to give an altering significant to an amendment of the organic act, let us consider proposed section 1 of Senate Joint Resolution 1. It was derived from the American Bar Association proposal of February 26, 1952,44 which reads as a whole:

A provision of a treaty which conflicts with any provision of this Constitution shall not 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 could enact under its delegated powers in the absence of such treaty. (S. J. Res. 43 follows this language.)

The whole of this proposal had the more far-reaching purpose of altering the Constitution as it was adopted in 1789, and interpreted in the intervening years. That purpose was and is to reduce the constitutional scope of treatymaking and the subjects of treaties, and to eliminate the self-executing effect of those treaties that can presently be self-executing, by requiring the legislative action of Congress but limited by the measurement of its delegated powers under the Constitution absent any treaty. The effect sought is a very definite change in the constitutional distribution of powers, by giving the Federal Government less than the whole of the treaty power and reserving part of it to the States. In other words, it would reverse Missouri v. Ilolland and predecessor cases and undoubtedly, among other things, make of the 10th amendment to the Constitution a limitation on the treaty power.

Mr. Smither. You are not referring to Senate Joint Resolution 1 at that point?

Attorney General BROWNELL. I am referring to the predecessor provision originally drafted by ABA on February 26, 1952, which is broader,

** 38 ABA Jour, 435 436 (May 1952).

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Senator WATKINS. That is restated in Senate Joint Resolution 43. Attorney General BROWNELL. That is correct, Senator.

Mr. SMITHEY. Earlier in your statement you had said, “let us consider proposed section 1 of Senate Joint Resolution 1.” 'I wanted to make that clear.

Attorney General BROWNELL. I am coming back to that where I say in such circumstances it is quite conceivable that the partial adaptation of the American Bar proposal in section 1 of Senate Joint Resolution 1 might be construed by a court to be more than confirmatory of existing law and to have some of the altering effect desired by the sponsors of the ABA proposal. A “right enumerated in this constitution" might be deemed to be a right or power allegedly “reserved to the States respectively, or to the people" under the 10th amendment.

The same criticism as Senator Watkins said, is of course true of the corresponding provision in Senate Joint Resolution 43 which is the original American Bar Association proposal.

Senator BRICKER. It is not the same as the one you read back on page 17.

Attorney General BROWNELL. No. The purpose and intent it seems to me is the same, to reverse the Missouri v. Holland decision.

Senator WATKINS. I don't know if it goes as far as that, but at least the first sentence is rather sweeping and would take care of the whole situation:

A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. That is much broader in my opinion than the one in Senate Joint Resolution 1. There are many rights protected under the Constitution to the citizens of this country which are not just purely domestic. For instance, I have a right to have my Congressman and my Senators pass on the matter of whether I go to fight or not fight, whether I have war or don't have war for this country. It seems to me the first sentence of section 1 of Senate Joint Resolution 43 is more sweeping. If you are going to have a law, I think that is the kind that ought to be there.

We had an example yesterday where a treaty did expand, under the thesis of the Secretary of State, the warmaking power of the President to include not only the defense of the United States but 11 nations over in Europe. We have added to that now. We have 13 nations.

Attorney General BROWNELL. I see your point, Senator. I happen to disagree with it on the ground I think it is too inflexible, as I will point out a little more in detail as I go along in this statement.

Senator WATKINS. You do not think the President should ever have the power to negotiate a treaty and have the treaty go into effect that would contravene the Constitution?

Attorney General BROWNELL. I do not.

Senator WATKINS. That is all this says. We did attempt in the North Atlantic Pact to do identically that because I think it will be conceded that no President of the United States in the absence of a treaty would have any power whatsoever to order our forces into a war simply because Denmark, for instance, might be invaded. Yet that is precisely what was intended in the North Atlantic Pact, to give the President the power; if any one of the powers in the pact were invaded, to go immediately to their rescue and fight.

Secretary Dulles said so much in substance yesterday. But of course there is another provision in that treaty which seems to negate that. Just what the treaty finally means is to my mind rather confused. I do not know finally what it does mean. It is an attempt to expand the warmaking powers of the President. That is one reason why I personally favor very much that opening sentence in section 1 of the Resolution 43.

Senator HENDRICKSON. Mr. Attorney General, I must go, too. I am terribly sorry. So I will yield the Chair to Senator Dirksen.

Senator DIRKSEN. Thank you, sir. Mr. SMITHEY. Mr. Chairman, before we leave that point, may I discuss it a little further?

The allegation has been made in the statement that the first section of Senate Joint Resolution 1 has been adopted from the American Bar proposal and that therefore it might be interpreted as reversing Missouri v. Holland. Is it not true, Mr. Attorney General, that the language of section 1 of Senate Joint Resolution 1 is only similar to the first sentence of the American Bar proposal? Do you contend that the first sentence of the American Bar proposal would reverse Missouri v. Holland ?

Attorney General BROWNELL. My contention is in the next statement in my formal statement, sir.

Mr. SMITHEY. Before we proceed, sir, I understood earlier your position was that the case of Missouri v. Holland was not in conflict with the Constitution but was in furtherance of the expressly delegated powers of the Congress in the Constitution. Is that correct, sir?

Attorney General BROWNELL. That is right.

Mr. SMITHEY. Then, you do intend to develop later in your statement how you conclude that the first sentence or the first section of Senate Joint Resolution 1 might reverse Missouri v. Holland?

Attorney General BROWNELL. That is right. Senator WATKINS. Section 1 of Senate Joint Resolution 1 provides: A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect. The American Bar proposal, as I get it, provides as set out in section 43:

A provision of a treaty which conflicts with any provision of this Constitutionnot of any right of citizenshall not be of any force or effect. There is a vast difference between those two.

Attorney General BROWNELL. Yes; and it does indicate the basic difficulty that we have here of terminology that these two equally sincere and learned groups have not been able to agree on language up to now which accomplishes their objective.

Senator Watkins. I may say, if I may be permitted an observation at that point, that I believe that when we say, "which denies or abridges any right enumerated in this Constitution” it is probably almost as sweeping as the other one because I think, as I pointed out a moment ago, I have the right that is one of the rights protected by the Constitution, and all citizens have the same right, to have their

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representatives in Congress make the final decision between peace and war.

Now, I came to the conclusion yesterday from some of the discussion that probably other Senators who were supporting Senate Joint Resolution 1 rather felt it is not that broad. But it seems to me if you are going to give any weight to rights, we have to go and expand it to all the rights protected by the Constitution. We are not limiting it to any one right or any series of rights. So I hope you will keep that in mind in this discussion.

Attorney General BROWNELL. Thank you, Senator. This follows very appropriately then, because I say in my statement whether or not these or different meanings would ultimately be attributed to the amendment by the courts, certain it is that there would be opened an enormous source of contest and litigation which would hamper the Government at every step in the conduct of presently normal business, and render doubtful the actions taken.

The history of the past and the decisions of our courts are completely reassuring on the place of the treaty power in the constitutional scheme. They render unnecessary the amendment proposed. Combined with the constitutional checks and balances of two-thirds of the Senate on the President in treatymaking, of the Congress on both in erasing undesired domestic effects and of the courts on all in judging the constitutionality of the results, they constitute as strong a legal guaranty against unbridled exercise of the treaty power as the ingenuity of man has devised in any effectively working political system.

Sec. 2. No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States.

I believe I am right in saying Senate Joint Resolution 43 has no similar provision.

Senator WATKINS. It was not broken up into sections.

Attorney General BROWNELL. I might put in the record if it is appropriate that the corresponding language in 43

Senator WATKINS. Just a moment, I am checking here. That is stated another way, not in the same language, it is true.

Attorney General BROWNELL. The purpose of this section is said to be to prevent future adoption of certain kinds of treaties, such as the incompleted drafts of covenants on human rights.

However, it is conceivable that were section 2 in force now or earlier, it could have prevented this country entering a number of kinds of international agreements of importance to us.

The provision prohibiting a treaty (or, under sec. 4 which is hereafter discussed, any other international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States) would throw doubt upon, if not nullify, the use of mixed claims commissions to settle or adjudicate damage claims of United States citizens. An example of a number of these is found in the Claims Convention of 1868 between the United States and Mexico * under which an international commission, appointed by the President of the United States and by the President of the Mexican Republic, was given authority to finally determine claims for personal

"1 Malloy, Treaties, 1128.

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