cause of article VI of the Federal Constitution making all treaties the supreme law of the land, anything in the constitution or laws of the several States to the contrary notwithstanding, and because of the real possibility that such treaties, if ratified, may adversely affect in a large way existing Federal laws and State constitutions and laws, the committee on peace and law several years ago considered the advisability of studying possible amendments to the treaty-making power of the Constitution to prevent adverse effects of treaties on the domestic law of the Nation.

The house of delegates of the American Bar Association in September 1950, in a formal resolution, approved this study, looking toward definite recommendations in this field.

As the result of intensive study, the committee on peace and law submitted to the house of delegates of the American Bar Association at the February 1952 midwinter meeting of the National Bar Association a draft of a proposed constitutional amendment relating to the treaty-making power. After extended debate, and with some opposition, the house of delegates overwhelmingly adopted the following resolution, which I here read into the record.

This is the resolution adopted by the house of delegates on February 26, 1952 [reading]:

Resolved, That the American Bar Association recommend to the Congress of the United States for consideration an amendment to the Constitution of the United States in respect of the treaty-making power, reading as follows:

"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."

This resolution, as indicated above, represents the opinion of the organized bar of the United States in the 48 States and the Territories, as embodied in the American Bar Association, after full study and debate, although it should be recognized that there may be one or two individual groups who think an amendment is unnecessary. For the record, I also offer a portion of the report of the committee on peace and law, dated February 1, 1952 (third printing), which constitutes the background of the house of delegates resolution. I offer pages 4 to 19 of the report, captioned "The Treaty-Making Power: Control of the Treaty-Making Power by Constitutional Amendment" [exhibit J]; and pages 29 to 33, appendix B, "Miscellaneous Authorities on the Treaty Power" [exhibit K].

I also offer from the September 1, 1950, report of the committee on peace and law pages 3 to 16, entitled "The Treaty-Making Power: A Comparison of the Treaty-Making Power in the United States of America and Other Countries" [exhibit L]; and pages 55 to 68, appendix A, captioned "Modern Provisions Covering the TreatyMaking Power" [exhibit M].

(The exhibits offered for the record appear in the appendix.)

Mr. SCHWEPPE. This latter study was prepared by Dr. Finch and shows that the United States of America is virtually unique among the world's nations in making treaties the supreme law of the land; that is, domestic law for the several States, without implementing congressional legislation.

Before proceeding to a discussion of the resolution, I should like to express the appreciation of members of the committee on peace

and law and of other members of the American Bar Association for the recognition by Senator Bricker on February 7, 1952, when he introduced Senate Joint Resolution 130 (see Congressional Record, February 7, 1952, pp. 920-928), and again today of the pioneer work done on this subject by the committee on peace and law and other members of the American Bar Association who have labored in this field.

You have before you today for consideration the text of Senate Joint Resolution 130, Senator Bricker's proposed constitutional amendment dealing with both treaties and executive agreements.

Before going directly to the text, I should like, first, without reading the whole February 1, 1952, report of our committee, which is already in the record and of which you have copies, to explain the resolution which the house of delegates has submitted for your consideration, because this resolution will furnish the background for both that text and the text of Senate Joint Resolution 130.

The text submitted for your consideration by the house of delegates of the American Bar Association covers three main ideas. The first idea is that a provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. That provision is recommended by the committee on peace and law and by the house of delegates of the American Bar Association, because of the uncertainty that exists at the present time with reference to the extent of the treaty power.

It is true that the Supreme Court said, in early cases, of which Geofry against Riggs is commonly cited, that you cannot do under the treaty power what the Constitution forbids.

On the other hand, we have the case of Missouri v. Holland (252 U. S. 416), in which the Supreme Court held, although Congress had no power to control the subject under its ordinary delegated powers, that once a treaty was made on the subject an act of Congress that would have been unconstitutional in the absence of the treaty became constitutional because of acts pursuant to the treaty by virtue of that clause in article I of the Constitution which gives Congress the power to pass all laws necessary and proper to carry this Constitution into effect and to carry into effect the powers delegated to any department or officer of the United States.

Mr. Justice Holmes held in that case that article VI of the Constitution merely requires that the statutes be pursuant to the Constitution, but treaties need merely to be made under the authority of the United States, which he suggests may mean no more than formal acts necessary to constitute the treaty.

We have been engaged in this study jointly for a period of time with the section on international law of the American Bar Association. Some of the members of that section do not seem to feel a constitutional amendment is necessary. They recognize the serious problem here, of which we are all aware, and there is no difference between us as to the existence of a very far-reaching problem. The difference is as to the remedy to be adopted.

The gentlemen of the international law section who do not agree with our viewpoint were of the view that you can control this thing sufficiently by putting clauses in the treaties, or by making reservations to treaties.

The committee on peace and law, supported now by the house of delegates of the American Bar Association, does not believe that that is an effective answer to the extension of Federal power over the internal affairs of the States, by the treaty method. We think that the appropriate remedy is a constitutional amendment which will take us over and above the language of anything that anybody can write into a treaty, or fail to get written into a treaty.

It was agreed between the committee-and this is very important and is a background for our proposal-and the section that, under a treaty, Congress, by virtue of article I, section 8, can pass all laws necessary and proper to give effect to and implement treaties, even though, in the absence of such a treaty Congress would not have power under the Constitution to pass such legislation, and that by neither reservation or understanding can this power of Congress be controlled if Congress chooses to exercise it. To that extent we agree. We disagree as to the remedy. We agree on the problem.

A very great American lawyer, Henry St. George Tucker, who was in his day dean of the Law School of the University of Virginia, and also a former president of the American Bar Association, wrote a book in 1915 which he entitled "Limitations on the Treaty-Making Power." The book was some 400 pages, and in the course of that book he makes the famous and much-quoted statement that the treaty clause of the Constitution is a Trojan Horse; that is, to carry out the comparison, it has a lot of hidden soldiers in it which leap out upon you in the dark of the night when you are not expecting it.

His point about it was that a doctrine such as that of Missouri against Holland, under which the State Department, with the assistance of the President, negotiates a treaty and the Senate ratifies it, suddenly hits the various States in cases that come up in court, and the States find out for the first time that the President and the Senate by ratifying the treaty have pushed State constitutional provisions and Sate laws out of the way, and that the matter which was heretofore a matter of strictly State concern has now become a Federal concern, because, State constitutions and laws to the contrary notwithstanding, the treaty must prevail. That is the reason for Henry St. George Tucker's famous statement that the treaty clause was a Trojan horse. He is not the only one that believes that. Richard Henry Lee of Virginia and Patrick Henry of Virginia objected to the provisions concerning treaties, because they thought there was no control on the treaty-making power. They thought there was no control the way the clause is presently drawn because it says that statutes must be pursuant to the Constitution but a treaty merely need to be made under the authority of the United States.

The importance of the problem from our standpoint becomes more serious when we recognize that fact. Decades ago, and certainly at the time the treaty clause was adopted, treaties were rather simple affairs. They were formal agreements between governments relating to treaties of peace, commerce, and navigation, consular treaties; and that was, generally speaking, the extent of it. However, in recent times, with the more modern viewpoint advocated by Dr. Jessup and others and it is a viewpoint they have a perfect right to advocate, even though others of us do not agree with it-there has been put into the treaty field a great deal of subject matter which heretofore many

of us thought was strictly the domestic concern of the several countries involved. The treaty clause now carries a different implication. That is what brings us to this very serious question.

The State Department, for instance, has an official bulletin issued in 1950, saying "that there is no longer any real distinction between domestic and foreign affairs." If that is true, under the treaty-making power, any subject matter can be seized, which heretofore has been deemed to be the exclusive concern of the several States, in their relationship to the citizens of the several States, and, of course, if treaties are made in those fields, State constitutional provisions and laws will disappear to the extent that they conflict with the provisions of a treaty negotiated by us with 15, 20, 30, 40, or 50 other nations of the world, who may have different concepts about the particular subject matter that is involved in the treaty.

To show that we are not alone in our concept as to the extent of the treaty-making power and that we wrote the first sentence of this proposal advisedly, I would like to direct your attention to a statement made by former Chief Justice Charles Evans Hughes before the American Society of International Law in 1929, so that we cannot be charged with conjuring up anything about the extent of the treaty power. I should like to call your attention merely to these statements [reading]:

If we take the Constitution to mean what it says, it gives in terms to the United States the power to make treaties. It is a power that has no explicit limitation atached to it, and so far there has been no disposition to find in anything relating to the external concerns of the Nation the limitation to be implied. 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. 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. The Supreme Court has expressed a doubt whether there could be any such

That is the doubt that has been expressed in one of its opinions, referring to Missouri against Holland—

But, if there is a limitation to be implied, I should say it might be found in the nature of the treaty-making power.

Then Justice Hughes goes on to say:

If we attempted to use the treaty-making powers to deal with matters which did not pertain to our external relations, but to control matters which normally and appropriately were within the local jurisdiction of the States, then I again say there might be grounds for implying a limitation upon the treaty-making 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.

That is a brilliant statement, which comprehends the whole problem as it is presented here.

Justice Hughes entertains doubts as to whether, insofar as the courts have ruled, there is any limit to the treaty-making power.

He further issues a caveat that if the treaty-making powers should be used to deal with subjects that heretofore have been deemed to be matters of domestic concern, that they raise a serious question as to the extent of the treaty-making power, and whether or not a limitation should be implied.

Particularly, the latter portion of the statement would be rather reassuring, if we were not now told by the State Department that there is no longer any difference between domestic and foreign affairs. If there is no longer any difference between domestic and foreign affairs, then, of course, the treaty power can reach any subject matter and the possible implied limitation referred to by Justice Hughes relating to the treaty-making powers to matters of external concern, and excluding it from matters of internal concern, for the purpose of making domestic laws for the several States, has disappeared from the picture, and we then have the situation today-and that is the thing that we fear that under the treaty-making power now, any subject can be seized that is within the domestic concern of the States, because the State Department believes that any domestic subject also has international implications, and therefore is a fit subject upon which to make a treaty.

If that is so, under the treaty-making power, a great body of State. constitutional, and statutory law can be wiped out.

To give you another illustration that there is nothing fantastic about this fear which we entertain and which Justice Hughes entertained as far back as 1929, we refer in our report to the attitude of the President's Committee on Civil Rights. The President's Committee on Civil Rights, which rendered its report, I think, 2 years ago, went into the subject to a considerable extent, as to the power of Congress under its existing constitutional powers, to pass civil-rights legislation, notwithstanding it is the concept of many that civil rights is a subject matter that is the concern of the several States, under the tenth amendment.

After dealing with that particular problem as to the extent of congressional power under the Constitution, they said, and I quote

The Human Rights Commission of the United Nations at present is working on a detailed national 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.

Not only that, but as late as February of this year the section on international and comparative law of the American Bar Association, brought in a report to the midwinter meeting of the American Bar Association, stating that under the treaty-making power the Government of the United States could agree to an international criminal court in which there was no trial by jury and in which an American citizen could be taken abroad for trial without the safeguards which the American Constitution gives to him.

Now, it is agreed, if he were tried in this country he would be subject to and have all of the constitutional protections that the Constitution gives to persons charged with crime, but they say, under the treaty power we can agree to the creation of an international court that frees us of those constitutional limitations.

In other words, it is claimed that the United States Government can, under the treaty power, provide for the trial of American citizens abroad for offenses committed here by methods and in places which the Constitution forbids.

That is one reason, both the Missouri against Holland doctrine, and this general doctrine as to the extent of the treaty-making power, we suggest as a first sentence, the one that I read you a little while ago,