Pari aments, respectively, implement that treaty by legislation. Th Site or virtually all the countries in the world, as Dr. Finch point udy which he made in the September 1, 1950, report the Coumi tee on Peace and Law. As stated in the Canadian Bar Review, November 1951 (p. 969 s a well estadished rule of Anglo-Canadian law that the provisions of སྨོན ེནདབྱེ”ཚེ inding upon the state under international law, do not beco L ne land unless they are implemented by legislation. A tre ceu iepiemented by legislation cannot be the source of legal of CONSIN rights. M. Mormon. That is the Canadian rule. now sees. That is right. te Urted States to be in the same position as other cou here to reason, if a treaty with Great Britain, so far as t we concerned, is nothing but an international agreement a cines e effect, why it should have a domestic effect in t ་་ེ་་ང་ acter of fact, Judge Hudson, of the Harvard Law Schoo Pa some years ago in an article in the American Journal a vaal law the anomalous situation we find ourselves in b stor supreme law clause, which other nations do not hav as a treaty that is self-executing in character, it is bindin the courts in our country will enforce those treati pevate rights, whereas courts in other countries hav my or en right to enforce them. So what we are trying to d is second idea in our proposal is to make all treaties non-sel Then the Congress will know and the States will know a not ex, the treaty will have effect on the domestic law o ཟེེར ཝཱ in; L Aty in our case will be only an international agree as the case of Britain and most other countries, unt are body incorporates it into the domestic law of the cour he extent it deems it necessary and proper to do so. The concept that is embodied in the proposal of the America Ny: Lopereron, approved by the house of delegates, is the last claus odo acord sentence, the "which" clause-legislation by Congres "wi cà i could enact under its delegated powers in the absence o Post portion of the second sentence of our proposal, is identica wat Senator Bricker's proposal, who also proposes to make all treati whatsoever non-self-executing, in order to put us on a parity wit delet nations of the world. The second portion of the second sentence-the "which" claus which we have added as an additional control on implementing legis aron under the treaty power-is intended specifically to limit th doctrine of Missouri v. Holland. We have done that, in other word to make it plain that when Congress legislates under treaties, buted to the constitutional powers which it has in the absence o reary; in other words, that its constitutional powers to legislate ar not onlarged by reason of the existence of the treaty, beyond th powers which it would have in the absence of the treaty. We thin Pyat the "which" clause will have the effect of keeping State an Fodoral power in balance. ti that third idea, embodied in the "which" clause is put into Constitutional amendment, then the balance between State and Federa er will stay as it is, unless changed by constitutional amendThe Federal Government will not have greater power by of having ratified a treaty, and the States will not have less ser by virtue of the Federal Government having ratified a treaty. De reason behind that is several fold. We have made pretty elabe studies of the whole historical background of the treaty power. T-have read all the documents from the Federalist and the debates. is perfectly plain to us that it never was intended by the Festing Fathers that the treaty clause should be a device for unsetthe balance between State and Federal power. When the ConSon was originally adopted, you will remember, there were a er of States that had large doubts about the extent of the powers ferred, so 10 amendments were added, 2 years later, in 1791, to Avery, very sure that the Government was a government of dei powers, and that what was not delegated was reserved. Of re, the Court, in determining the scope and effect of the 10th ent, first determines what has been delegated, and what is arly implied from the delegated power. The rest is necessarerved to the States and to the people under the 10th amendment. No, it seems clear to us that the Founding Fathers intended to in the balance between State and Federal power that was rally established. They did not intend this modern concept at If we make a treaty with Canada, or Lebanon, or Iran, on some at otherwise reserved to the States under the 10th amendment, laws and State constitutions to the contrary will pass out the -that never was their concept. They were very jealous of State rights. Jefferson expressed this concept in his Manual of er.tary Practice as follows: By the general power to make treaties, the Constitution must have intended rehend only those objects which are usually regulated by treaties, and te otherwise regulated. * most have meant to except out all those rights reserved to the States; for the President and the Senate cannot do by treaty what the whole Govern*Canterdicted from doing in any way. (Quoted from American Bar Associatitral, September 1952, p. 736.) Missouri v. Holland is to the contrary. Missouri v. Holland ally holds that a treaty can be made and thereby the Federal ement can invade the area reserved to the States. CHAIRMAN. I think this would be a very good place to stop. T.: ave five more witnesses. What time would be convenient for meet this afternoon? M. SCHWEPPE. Any time you name. M CHAIRMAN. Senator Smith and Senator Watkins, what time think? Would 2:30 be convenient for you? ator SMITH. I have an appointment in the White House today lock. CHAIRMAN. We want you here if we possibly can. Would 3 be better for you? ator SMITH. I have got to be down there at 3 o'clock, and I will s by 3:30, I presume. HLMAN. We can meet at 2 o'clock if you want to. CHAIRMAN. Unfortunately, I am tied up until 2:30. CHWEPPE. 2:30 will be fine. HOT WATKINS. I will not be able to meet at all this afternoon, !l be here in the morning. Parliaments, respectively, implement that treat is true of virtually all the countries in the worl out in that study which he made in the Sept the Committee on Peace and Law. As stated in the Canadian Bar Review, N It is a well-established rule of Anglo-Canadian treaty, though binding upon the state under inte part of the law of the land unless they are implen that has not been implemented by legislation ca gations affecting private rights. Mr. HOLMAN. That is the Canadian ru We want the United States to be in th tries. There is no reason, if a treaty w British are concerned, is nothing but has no domestic effect, why it should United States. 1 As a matter of fact, Judge Huds pointed out some years ago in an a International Law the anomalous cause of our supreme-law clause, If we make a treaty that is self-e on our courts. The courts in ou with respect to private rights, w no duty or any right to enforce with this second idea in our pr executing. Then the Congress what time, if any, the treaty the country. A treaty in our ment, just as in the case of the legislative body incorpor try, to the extent it deems it The third concept that is Bar Association, approved of the second sentence, t "which it could enact u treaty." The first portion of the with Senator Bricker's pr whatsoever non-self-exec other nations of the wo The second portion which we have added a lation under the treat doctrine of Missouriy to make it plain the is limited to the con treaty; in other wor not enlarged by re powers which it wa that the "which" Federal power in If that third constitutional an DEMOCRATIC ACTION, d notification of the heari Joint Resolution 1, proposing States relative to the making ngs to be held Wednesday, Febru very much interested in the propo rtunity of presenting its views to y inquired at the offices of the Judicia int Resolution 1 and were informed t ras today, February 16. This would g prepare its statement, secure a compet mmittee. Or, if we are to comply with requested in your notification of the hearin u prepare the statement and have it in y e of this resolution and the seriousness of e might flow from such an amendment to e permitted to testify at a later date, and th this proposal be given sufficient notice to per ly prepare and present their case. y of the organizations testified last year on adequate time has not been available this ye Bricker resolution, which is a considerable char stitution is a serious matter, particularly so wh -important question is inadequate. very question of national sovereignty. Two da JOHN J. GUNTHER, Will you continue, Mr. Schweppe? the third idea in the "which clause" which is th wir proposal, we make it very very clear that th equire additional legislative power by virtue o t congressional power remains the same affected by the ratification of the me under the Constitution, unIand the balance between by treaty but can only a our proposal covers, n of constitutional con, 1952, report. (See 1952 ve Agreements, p. 484.) It -t amendment. It is a point nany writers on the subject. as 1950. The first amendment tects freedom of speech, freedom But what is the language of the d protection is in this form: pecting those three subjects. is a limitation on Congress. Congress treaty power is vested in the President l not only read the constitutional language Federalist, you will see that the founding they should set up a separate agency for the There was discussion as to whether Congress I here was a discussion as to whether the President alone. They determined not to put the power in determined not to put it in the President. They tup a separate treatymaking agency consisting of the the Senate. The limitations in the first amendment to freedom of speech, press, and religion are only limiCongress. They are not a limitation on the treatymaking w you how important that is, the United Nations has in the w a so-called treaty on freedom of information which deals feedom of speech and freedom of press. The United Nations d Covenant on Human Rights has in its provisions relating dom of speech and freedom of press, which are to be dealt with the treatymaking power. Priding that no treaty shall have internal effect in the country Congress legislates will squarely bring into effect the limitation first amendment that "Congress shall pass no law," which at ent time is a wide-open question. fessor Chafee, in an article he wrote in the Wisconsin Law - a year or two ago, undertook to address himself to this parar problem, to wit, our committee's comment that the first amenda limitation on Congress and not on the treatymaking power. mes to the conclusion, as I recollect it, that while our point Tery serious we must assume that the Supreme Court will ely refuse to adopt that view. are not satisfied with that sort of speculation. We believe that p should be closed, and that there should be no doubt whatthat nothing can be done under the treatymaking power that is prohibited from doing under the first amendment. are the principal points incorporated in the amendment recded by the house of delegates of the American Bar Association. 1573-535 The committee on peace and law has examined all of the proposa on treaties and executive agreements now pending in Congress. Whil your committee believes that the text previously recommended by fully and adequately covers all of the constitutional principles whic are involved, and which were approved by the house of delegates o the American Bar Association, an even shorter version, wholly withi those principles, could appropriately read as follows: SECTION 1. A provision of a treaty which conflicts with this Constitution sha not be of any force or effect. A treaty shall become effective as internal law i the United States only through legislation which would be valid in the absenc of treaty. SEC. 2. Executive agreements shall be subject to regulation by the Congres and to the limitations imposed on treaties by this article. This shorter text is embodied in Senator Arthur Watkins' Senat Joint Resolution 43, now pending here. Because the final text of any proposed constitutional amendmen will be drawn by the Judiciary Committees of Congress, our committe suggests that you also give this shorter version consideration. By way of brief summary of the situation since the American Ba Association text recommendation was made to Congress for consid eration, no objection has been offered to the first sentence rendering void all treaties in conflict with the Constitution, except that such a statement is "unobjectionable in itself but unnecessary" (Zecharial Chafee, Jr., Harvard Law School Record, February 21, 1952; see American Bar Association Journal, September 1952, p. 794). Nor has much substantial opposition been expressed to the first clause of the second sentence which renders all treaties non-self-executing until Congress acts by implementing legislation, thus putting the United States in this respect on a parity with the great majority of nations. In virtually all of the countries of the world a treaty, while effective as an international obligation upon ratification, does not become domestic law unless and until made so by parliamentary action. (See American Bar Association Journal, September 1952, pp. 468, 469; Report of Committee on Peace and Law, September 1, 1950.) The principal attack on the treaty amendment recommended by the American Bar Association centers on the last clause of the second sentence, usually referred to as the "which clause." That clause provides that implementing legislation by Congress intended to make treaties effective as internal law must be legislation by Congress "which it could enact under its delegated powers in the absence of treaty." As stated, the "which clause" is intended to set aside the rule of Missouri v. Holland (252 U. S. 416), which establishes the principle that when the United States makes a treaty on a subject within the treaty power, the Congress can enact legislation to implement the treaty which it would not have power to enact in the absence of a treaty, and thus enter a field normally reserved to the States. That decision makes possible the complete upsetting of the constitutional balance between Federal and State power through the exercise of the treaty power by the President and two-thirds of the Senators present (American Bar Association Journal, September 1952, p. 795). The objection to the American Bar Association draft was stated in the committee report to the New York State Bar Association as follows: The result would be that even if a treaty deals with an appropriate subject of international agreement, the Congress would have no power to implement it or |