This I think is necessary because of the approach I want to make to the subject. It is simply this, that our Federal Government is and should continue to be, one of delegated and limited powers and that its powers should be limited to matters that are national in scope and character, and matters which are essentially local in character should be reserved to the States and the people, with the power to deal with them in the light of peculiar local conditions and problems which differ widely throughout the various sections of our great country.

Now, I think the fundamental issue involved is whether or not the constitutional amendment limiting the treaty-making powers is necessary in order to insure protection of the reserve rights of the States and the preservation of the individual rights and liberties of our people.

I think many persons would say: Why does the treaty-making power under provisions of our Federal Constitution which has not been changed since its adoption now give rise to questions of supreme importance? I think there are two, perhaps three, answers to that inquiry. One is that, in my judgment, for a good many years there has been a persistent effort to find constitutional basis for the expansion of the powers of the Federal Government.

Two, there has taken place a basic change of viewpoint among certain people, at least with respect to the functions and purposes of treaties, and those two, coupled with the fact that treaty-making power in our Constitution is not expressly limited, and whether there are any implied limitations on the power is a question at least shrouded in doubt.

Senator FERGUSON. Do you think, Judge, that there may be no limitation on the treaty-making power?

Judge PHILLIPS. I think there may be no limitation. If I had to give my own answer I think I should find some limitation.

Senator FERGUSON. From the words of the Constitution there are none?

Judge PHILLIPS. From the words of the Constitution there are none, and my thought is that some limitation is needed and ought to be spelled out.

Now until recently it was a fundamental concept of international law that it is a law between States and not between individuals or between individuals and States.

A treaty is primarily a compact between independent nations and depends for the enforcement of its provisions on the honor of the governments which are parties to it and if it is dishonored, its infraction becomes the subject of international reclamation and negotiation. At the time the Constitution was adopted and until recently, treaties, entered into by the United States, generally were compacts in that primary sense, imposing duties and obligations on the contracting States and not on individual citizens. It is true that under the supreme-law provision of our Constitution, a self-executing treaty becomes municipal law in the United States, and such a treaty may confer rights upon citizens or subjects of a signatory nation, residing in the United States, which partake of the nature of municipal law and which are capable of enforcement as between private parties in the courts.

An illustration is found in treaties which regulate the mutual rights of the citizens and subjects of the contracting parties with respect to the devolution of property to aliens by devise or inheritance.

Today, however, treaties are being proposed, and at least one has been submitted to the Senate for ratification, which impose civil and criminal liability for acts of citizens of the United States or which affect rights of and impose duties and obligations on citizens of the United States, in areas heretofore within the reserve powers of the States.

Senator FERGUSON. Could I interrupt you for a moment there?
Judge PHILLIPS. Certainly.

Senator FERGUSON. You have given an example there where it became municipal law in relation to property rights. Do you know of any other treaty that we have ever had that created a crime which would be punishable by the courts because of the existence of the treaty?

Judge PHILLIPS. I know of none. An expert on our committee is Mr. George Finch; perhaps he could give a more categorical answer. Mr. FINCH. I do not know of any treaty that comes within that category, Senator. We have neutrality laws on our statute books, but those are acts arising under what we call the common law of nations, and they are not in the same sense crimes.

Senator FERGUSON. But this new treaty that you are talking about, that is now before the United States?

Judge PHILLIPS. Yes.

Senator FERGUSON. It would in effect create a crime?

Judge PHILLIPS. Oh, yes, I think so; that is, genocide.

Now may I just very briefly refer to the Constitution provisions? Of course, you are all familiar with article II, section 2, which states that the President shall have power with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur. You will observe that the grant of power is general and the limitation is only the manner of its exercise.

In United States v. Curtiss-Wright Corporation, decided in 1936 by Justice Sutherland, the opinion was written by Justice Sutherland, it was stated in substance that the treaty-making power is not one granted by the States; that it does not depend upon an affirmative grant in the Constitution; that without such a grant it would have vested in the Federal Government as necessary concomitance of nationality; and that the United States is vested with all the powers of government necessary to maintain an effective control of international relations.

In another case decided in 1937, the Supreme Court said that the external powers of the United States are to be exercised without regard to State laws or policies.

In a more recent case decided in 1942 the Court said:

The field which affects international relations is "the one aspect of our Government that from the first has been most generally conceded imperatively to demand broad national authority."

I have no quarrel with any of those statements if the treaty-making power is exercised in the field of international concerns. My quarrel comes when the treaty-making power is employed to create a basis for the enactment of acts of Congress which encroach on reserve powers of the States and deal with what I regard are essentially domestic matters.

Of course, dicta may be found in decisions of the Supreme Court to the effect that while the treaty-making power is not limited by any

express provision in the Constitution and that its exercise must not be inconsistent with the nature of our Government and the relation between the States and the United States, but those are mere dicta, they were not necessary to the decisions, and of course you all know that to this day the Supreme Court has never found a treaty to be beyond the powers of the Federal Government.

Now may I briefly refer to the supreme-law clause of the Constitution. It states:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any States to the contrary notwithstanding.

Now if you will notice, and perhaps you already have, that under this provision laws of the United States are the supreme law of the land only if made in pursuance of the Constitution while treaties are declared to be the supreme law of the land if they are made under the authority of the United States.

In other words, under this very general and almost unlimited power to enter into treaties.

Then we have the last paragraph of section 8 of article I dealing with the powers of Congress which, after stating the enumerated powers provides that Congress may make all laws necessary and proper for carrying into execution its enumerated powers.

Then mark you this:

all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

Under that provision, the Congress may enact laws to implement and carry into effect treaties made under the authority of the United States, although it would not have power under the Constitution to enact such laws in the absence of the treaty.

That is, of course, the basis of the holding of the Missouri v. Holland where the Migratory Bird Treaty and the regulations of the Secretary of Agriculture were upheld. You will recall that two earlier cases involving the validity of an act of Congress undertaking to accomplish that result were held back, but when the matter came before the Supreme Court under the treaty-making power, after referring to those cases, Mr. Justice Holmes himself said:

Whether the two cases cited were decided rightly or not, they cannot be accepted as a test of the treaty power.

He said further:

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 supports the statement I made about the power of Congress under the treaty-making power. If you once enter into a treaty then you can implement it, although you could not possibly have passed such a law under the Constitution in the absence of a treaty.

Now the matter which has given the committee of which I am a member and others difficulty was referred to by the late Chief Justice Hughes in an address he made in 1929. He first spoke about the treaty-making power not being subject to any express limitation and perhaps there was no implied or explicit limitation attached to it insofar as it related to the external concerns of the Nation.

Then he made what to me is a prophetic statement:

Now there is, however, a new line of activity which has not been very noticeable in this country, but which may be in the future, and this may give rise to new questions as to the extent of the treaty-making power.

Then he said this:

I have been careful in what I have said to refer to the external concerns of the Nation. I should not care to voice any opinion as to an implied limitation on the treaty-making power.

In other words, to deal with matters which did not pertain to our external relations but to control matters which normally and appropriately were within the local jurisdictions of the States. Then I again say there might be ground for implying a limitation upon the treatymaking power, that it is intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns through the exercise of the asserted treaty-making power.

But he carefully says that he would not say there was such an implied limitation. My position is that if there is not, there ought to be, and it ought to be made certain.

Senator FERGUSON. And that would be the purpose of the amendment?

Judge PHILLIPS. That is the purpose of the proposed amendment. Significantly, the State Department in September 1950 made the statement, official statement, as I understand, and released it in which they said: "There is no longer any real distinction between 'domestic' and 'foreign' affairs."

Senator FERGUSON. What was that case?

Judge PHILLIPS. That was a statement released by the State Department in September 1950 and is referred to in the 1950 report of our committee with the citation.

Now I have suggested that there is today a growing tendency to undertake to create basis for congressional enactments under the treaty-making power. In other words, in the absence of a treaty, and that that is indicated now by the President's Committee on Civil Rights report from which I quote:

The Human Rights Commission of the United Nations at present is working on a detailed international bill of rights designed to give more specific meaning to the general principles announced in article 55 of the Charter: If this document is accepted by the United States as a member state, an even stronger base for congressional action under the treaty power may be established.

You will notice they say they are talking about civil rights. Senator FERGUSON. Are you familiar, Judge, with the fact that when a bill was introduced in the Senate on the question of civil rights, the antilynch bill, I think Howard McGrath, former Attorney General, introduced it, had in it the fact that it would now be valid under the wording of the United Nations Charter indicating to carry out what the Commission had in mind?

Judge PHILLIPS. Yes. I think perhaps if that can be said to be a treaty dealing with those matters perhaps implementation might be constitutionally supported because they can certainly implement any valid treaty they enter into without reference to their delegated legislative powers.

Now if a treaty is not subject to these implementations, in addition to creating broad power to enact implementing legislation by Con

gress to which I have already referred, the treaty may perforce of its own self-executing terms have the force and effect of a legislative enactment affecting matters of local concern and traditionally regarded as within the reserve powers of the States.

A self-executing treaty, in addition to being an international contract, becomes municipal law of the United States in each of the several States and binding on the judges of each State, and anything in the Constitution or laws of their State to the contrary notwithstanding. That is true only in the United States, and to a limited degree in France. Every other nation, including our neighbor, Canada, a treaty while it binds the contracting nations under international law, does not become internal law in such nation imposing duties or obligations upon its citizens unless it is implemented by legislation enacted in accordance with its constitutional process.

Now the new activity referred to by the late Chief Justice is certainly more than noticeable. I am going to refer to only one treaty, and that is genocide. I am not unmindful that in defining it they defined it as an international crime or crime which has been perpetrated against human groups which shocked the conscience of mankind and were contrary to moral law, and were abhorrent to all persons who have a proper and decent regard for the dignity of human beings, regardless of the national, ethnical, racial, or religious groups to which they belong, and that the end sought to be attained by this convention is wholly desirable.

But the definitions of genocide in the convention are vague and lacking in precision. They do not lay down a certain and understandable rule of conduct. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

One of the most serious, and I think there are many serious questions in this genocide, is the proposal ultimately to vest in an international criminal tribunal jurisdiction to try, convict, and sentence American citizens charged with the offense of genocide, without the safeguards which our Federal and State Constitutions guarantee to persons charged with domestic crimes.

The record will show that our representatives indicate that conventionally they propose such a convention. A separate ad hoc United Nations committee of 17 members was created by the General Assembly on December 12, 1950, to prepare a preliminary draft convention for the establishment of an international criminal court. A draft statute was completed in August 1951. It is significant that this statute expressly deprives a defendant of the right to be tried by a jury of his peers in the district in which the offense is charged to have been committed—a right we regard as fundamental, and affords no protection against the use of an involuntary confession as evidence against the accused, a device almost universally resorted to in the trial of persons accused of crime in the police states.

The court will permit the defendant to speak, but he is not required to speak. It has nothing to do with self-incriminating statements made involuntarily out of court, in my judgment. I disagree with the concept that we can deprive our citizens of these fundamental rights given in the Constitution with respect to trial for criminal of