continue your provisions on suspension. That does not mean that the United States will be able to suspend any constitutional guaranties affecting its own citizens for two reasons. First, because section 18 says so, and second, because no treaty-and that seems clear-no treaty may violate the specific language of the Constitution. So I think there ought to be no fears on that account. Mr. SMITHEY. You discount entirely then the language of the first amendment of the Constitution which relates to Congress, and the fact that the treaty-making authority of the United States is not the Congress as such, but the President and the Senate. You discount that? Mr. MASLOW. If I understand you correctly, sir, you are saying that the first amendment applies only to Congress. Mr. SMITHEY. It does by its very statement. Mr. SMITHEY. No question about that. Mr. MASLOW. But nevertheless, nobody would concede, for example, that the President would have the power to establish a church, even though the first amendment uses the term "Congress shall pass no law." Mr. SMITHEY. You say that by conviction rather than by legal argument. Mr. MASLOW. I cannot site a case to you offhand, but if you would like, I would like to prepare a memorandum on the point to show that it has been so interpreted. I recall, for example, there was one case involving the grant of Federal funds by executive action to a hospital controlled by a religious order, and in the course of that there was litigation that arose and the Court held that the first amendment forbidding the establishment of religion was applicable even though this was not an act of Congress. It would seem to me that while perhaps the term is Congress, that there is no question that it applies to the whole Government, and not to Congress. But if you like, sir, and perhaps we ought to have the privilege of submitting a memorandum on that point, because I have heard that argument. before. Mr. SMITHEY. By lawyers. Mr. MASLOW. Yes; on the other hand, there are many provisions in the Bill of Rights which do not mention Congress, do not mention the Federal Government, and yet which have been interpreted by the Supreme Court to apply only to the Federal Government. Senator HENDRICKSON. Have you any further questions? Mr. SMITHEY. No, sir. Senator HENDRICKSON. I have no more questions. I thank you very much. Mr. MASLOW. Thank you. Senator HENDRICKSON. The committee will now recess subject to call of the Chair. (Thereupon at 4: 55 p. m., a recess was taken subject to call of the Chair.) TREATIES AND EXECUTIVE AGREEMENTS MONDAY, JUNE 9, 1952 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. in room The subcommittee met, pursuant to recess, at 1:30 p. m., P-36, the Capitol, Hon. Herbert R. O'Conor presiding. Present: Senators O'Conor, Smith of North Carolina, and Hendrickson. Also present: Wayne H. Smithey, professional staff member. Senator O'CONOR. At the request of the chairman of the Judiciary I should like to call the hearing to order. Other Senators will come in as soon as they possibly can. A meeting of the Judiciary has been in progress for several hours, but the men will come here very shortly. Mr. Gunther, I think you may go ahead. Will you kindly state your full name? STATEMENT OF JOHN J. GUNTHER, LEGISLATIVE REPRESENTATIVE OF THE AMERICANS FOR DEMOCRATIC ACTION Mr. GUNTHER. I am John J. Gunther, legislative representative of Americans for Democratic Action. I am not a lawyer. Today, I do not intend to discuss the legal implications of the question before your subcommittee. The Americans for Democratic Action is prepared to study and submit a brief on the legal points at a future time. We have not had time since the introduction of this resolution to give it the full and extensive legal analysis deserving a proposed amendment to the Constitution of the United States. We sincerely hope that we will have an opportunity to present our findings on this question before the Congress at its next session. I desire to confine my brief remarks to the question of the political desirability of the proposed change in the Constitution. Americans for Democratic Action believes that the adoption of Senate Joint Resolution 130 to amend the Constitution with respect to the treaty power is not in the best interests of the United States. With this belief, Americans for Democratic Action urges that Senate Joint Resolution 130 or any modification based on the principles of Senate Joint Resolution 130 be rejected by your committee and the Senate. The amendment here proposed would jeopardize the future influence of this country in world affairs and thereby undermine the present efforts of this country and our free-world allies. Now is not the time for the United States to limit its role in international cooperation; rather, it is the time to expand such efforts. The United States must be able to meet at the conference tables of the world on an equal basis with other sovereign states. Certainly, this was the intention of the framers of the Constitution. What other reason could they have had for placing such great power in the Executive to be limited only by the advice and consent of the Senate? Americans for Democratic Action believes that there has been no demonstrated defect in the present provisions of treaty and agreementmaking powers under the Constitution, and therefore we can see no need for amending these provisions. This is an election year. Legislation now before Congress is being debated in a highly partisan political atmosphere. Attendance at committee hearings and at floor debate is generally light. Under these circumstances Americans for Democratic Action believes that the Congress would be ill-advised to act so as to seriously alter the basic principles which have worked so well for the past 163 years as a guide to the growth of American democracy. We need allies today. These allies are to be gained at the conference table as well as through other acts of good faith on the part of the United States. We gain manpower, raw materials, production, and strategic bases by treaty and agreement with allies. To limit this Nation's power to negotiate in any given area might well limit our ability to negotiate on other matters. We cannot allow ourselves the immediate apparent luxury of isolation at the risk of future abandonment by our allies. To go it alone today could well force the United States in the very near future to become a state of garrison centralization fatal to our traditions of political and economic freedom. The cold war today requires that our diplomatic forces be armed with all the weapons that a democratic government can grant. No one in the middle of a hot war would propose amending the Constitution so as to limit the Commander-in-Chief powers of the Executive, and we believe that the winning of the cold war is as important to the survival of our Republic as any crisis this Nation has faced. We hope that the Congress, which has in its wisdom appropriated billions of dollars in the struggle for the preservation of freedom, will not propose an amendment for ratification which could throw away all that we have gained. Senator O'CONOR. Mr. Gunther, we are grateful to you for the statement you have submitted. May I ask whether it is the intention of the ADA to submit anything further within any short period? The reason I propound that question is that I observe from your statement that the ADA is prepared to study and submit a brief, and I was just interested to know if you anticipate that that can be in the near future. Mr. GUNTHER. Senator, I do not believe we would be able to complete such a study during this session of Congress unless it would continue after the national conventions of the two parties. I do not believe we could have anything done of quality sufficient to permit us to submit it to this hearing before the end of June. Senator O'CONOR. The reason I ask is this: Representatives of the American Bar Association and others who feel very keenly about this. question think that there should be the fullest consideration by the Congress in advance of action upon any of the pending treaties. It is for that reason that I was interested to know if you felt it was possible to have the benefit of advice from your group if and when the treaties are submitted for approval by the Senate. Mr. GUNTHER. Senator, as to those treaties which are now before the Foreign Relations Committee for ratification, we feel that holding them up rather than going ahead with ratification is a political question and has little to do with whether or not there is a basic need for amending the Constitution to provide for future circumstances. Senator O'CONOR. Just what do you mean by that? Mr. GUNTHER. When we talked this over as to how far we could go before appearing before this committee we did not go into the legal issues of it, because we were not prepared to do so. We have a number of lawyers on our board and on the executive committee. However they did not want to, without spending many, many more hours than they had an opportunity to, give opinions on the language of the proposed resolution, but they did feel that it is basically a political question and basically the whole root of this thing is not a legal question at all, that it is a matter of what is best for the United States. from the point of view of international politics and domestic politics. For that reason alone, without going into what we feel on cursory examination—and many, many lawyers on the board feel this waythere is very poor draftsmanship on this resolution and the whole principle is bad. Senator O'CONOR. Have you any opinion to voice as to the contention, for example, of representatives of the American Bar Association and others that certain of the treaties contemplated would have the effect of changing or nullifying certain State constitutional provisions or certain statutory provisions of the States in respect, for example, to qualifications of the professional men and women? Mr. GUNTHER. I presume this is the proposed human rights issue. Senator O'CONOR. That is one of them. Mr. GUNTHER. That, of course, is now before the United Nations and I would think that in the next session of Congress this constitutional amendment, the Bricker resolution, Senate Joint Resolution 130, could be considered at that time and that would be before the Human Rights Covenant would come before the Senate. Senator O'CONOR. However, there are several pending now before the Senate Foreign Relations Committee. Mr. GUNTHER. I think we might say that in the category of the International Treaty of Migratory Birds, Missouri certainly felt that that interfered with its constitution. Senator O'CONOR. There are others much more recent than that, as for instance Israel. Mr. GUNTHER. I must say, Senator, that I have not gone into that question with my board and I do not feel at liberty to express an opinion on that part of it. However, we did feel that this was pretty late in the session and not only was ADA not going to have opportunity to do a credible job in studying Senate Joint Resolution 130, but the people of the country were not going to have an opportunity. Senator O'CONOR. Would it be the position of the ADA that consideration of the treaties be deferred until a later date? Mr. GUNTHER. I think on each one of those individual treaties I would have to take that up with my board and come back on each treaty before the Foreign Relations Committee. Senator O'CONOR. Just to make a little more specific what I was adverting to, I have before me the text of the treaty of friendship with Israel. I am reading from article VIII, section 2, because this is one of the provisions to which reference has previously been made and which reads as follows: Nationals of either party shall not be barred from practicing the professions within the territories of the other party merely by reason of their allegiance, but they shall be permitted to engage in professional activities therein upon compliance with the requirements regarding qualifications, residence, and competence that are applicable to nationals of such other party. Mr. GUNTHER. I believe similar clauses are in other treaties of friendship. I mean that is not a new concept in treaties. Mr. SMITHEY. With the exception that in most of the treaties I have examined, Mr. Chairman, there has been a specific exception with respect to the legal profession. This one contains no such exception. Mr. GUNTHER. That is right. Senator O'CONOR. So this would make it applicable to the legal profession as well as medical, dental, and others. That is why I thought the committee would be interested whether the ADA has any attitude to express, because this is of course a pending matter and may conceivably be acted upon prior to the next Congress and before such time as you say to which we ought to wait. Mr. GUNTHER. I know in that specific instance the ADA has supported the treaty of friendship with Israel and has supported ratification of it. Senator O'CONOR. Are we to understand they do support ratification of it even with that provision in it with no reservation? Mr. GUNTHER. That is right. Senator O'CONOR. Are there any other questions? Have you a question, Senator Smith? Senator SMITH. No; I have none. Mr. SMITHEY. Senator, I would like to ask Mr. Gunther if the ADA was aware of the fact that this legislation has been pending before the Congress since February 7. Mr. GUNTHER. That is right. Mr. SMITHEY. Did you make any effort to study the bill in the interim? Mr. GUNTHER. Yes. I tried to get a committee appointed to study it and through inquiry at the Senate Judiciary Committee, practically daily inquiry by myself, I could never find out whether there was going to be any consideration of it in this session of Congress, and, therefore, since there were many other pending measures that we knew were going to be considered, we did not go forward with that committee. Mr. SMITHEY. Did your organization express to the committee in writing any desire to be heard prior to the beginning of these hearings? Mr. GUNTHER. No; we did not in writing. I called and went up to the Judiciary Committee room every time I was on the Hill, at least once a week and often once a day, and asked about it. The first we heard about the fact there were going to be any hearings was from the Congressional Record one day, and it was in the newspapers Friday morning and that is when I first heard about it. I talked to Mr. Biddle and he asked the committee for time. |