that any provision of a treaty which conflicts with the Constitution of the United States shall be of no force and effect, because, while it has been said by the Supreme Court that you cannot do anything by treaty power when the Constitution forbids it, the situation in Missouri against Holland was one where the Constitution did forbid the Congress from dealing with the subject matter in the sense that the power was not delegated. Not being delegated, Congress was forbidden to deal with it.

However, the Court said that while Congress was forbidden to deal with it under its normal constitutional powers, once the treaty was passed on the subject, Congress then had jurisdiction to deal with it, under its normal constitutional powers, and, equally here, the point put forward about the extent of civil-rights legislation under the treaty power, the right to create an international court for the trial of American citizens, freed of all constitutional limitations set forth in the Constitution, shows that there is a real danger that the construction of the treaty powers now laid down may permit something that the Constitution otherwise forbids.

Because the courts have spoken only in forms of dicta, and the courts have changed their minds in modern times many, many times, we would like that principle firmly engrafted in the Constitution as a limitation to the treaty powers.

The second concept that is embodied in the American Bar Association proposal will have the effect of making all treaties whatsoever non-self-executing.

I will read that sentence for this purpose:

A treaty shall become effective as internal law in the United States only through legislation by Congress

The purpose of that clause is to take the Trojan Horse element out of the treaty clause. Today the treaty is made. Two or three or five years from now several states find out that while everybody was asleep, including probably Congress and the States, a provision was put in the treaty which has the effect of invalidating a State constitutional provision or a State law. That comes about by reason of the supremelaw clause in the sixth article, which makes treaties automatically domestic law. Any self-executing treaty becomes automatically domestic law once it has been ratified by the Senate of the United States, State constitutions and laws to the contrary notwithstanding. What this proposal does is to render all treaties non-self-executing. It does not limit the State Department in negotiating treaties. They can go out and make it in any part of the world, but it does not conflict with any law in the country until Congress acts. We know exactly at what point there is an impact on existing Federal and State law, under this provision. That proposal of ours, which is identical with the one in Senator Bricker's proposal, has in support of it not only logic and reason and the protection of the several States from the Trojan Horse Act of the treaty clause, but it has behind it international precedent, virtually world over.

We are one of the very, very few countries in the world-in fact, the only important country in the world-where a treaty is other than an international agreement and becomes domestic law of the country by virtue of being ratified.

In the British Commonwealth of nations, which is very important to us, and in most other countries-and I have put in the record Dr.

Finch's study, made in the reports of 1950, bearing my statement out in detail-a treaty does not become domestic law unless there is separate legislation by the legislative body. Canada can make a treaty. Great Britain can make a treaty. That treaty is merely an international agreement. It is not binding on the courts of Canada or Great Britain. It does not affect private rights until either the British or the Canadian Parliaments, respectively, legislates. That is true of virtually all the countries in the world, as Dr. Finch pointed out in that study he made in the September 1 report of the Committee on Peace and Law.

We want the United States to be in the same position as other countries. There is no reason, if a treaty with Great Britain, so far as the British are concerned, is nothing but an international agreement, and has no domestic effect, why it should have a domestic effect in the United States.

As a matter of fact, Judge Hudson, of the Harvard Law School, pointed out some years ago in an article in the American Journal of International Law, the anomalous situation we find ourselves in because of our supreme-law clause, which other nations do not have. If we make a treaty that is self-executing in character, it is binding on our courts. The courts in our country will enforce those treaties with respect to private rights, whereas courts in other countries have no duty or any right to endorse or enforce them, so that what we are trying to do with this second idea in our proposal is to make all treaties non-self-executing. Then the Congress will know and the States will know at what time, if any, the treaty will have an effect on the domestic law of the country. A treaty in our case will be an international agreement, just as in the case of Britain, and most other countries, until the legislative body incorporates it into the domestic law of the country, to the extent it deems it necessary and proper to do so.

The third concept that is embodied in the proposal of the American Bar Association, approved by the house of delegates, is the last clause, the "which" clause, which it could enact under its delegated powers, in the absence of such treaty.

The first portion of our proposal, although differing perhaps slightly in words, is identical with Senator Bricker's proposal, who also proposes to make all treaties whatsoever non-self-executing to put us on a parity with other nations of the world.

The "which" clause which we have added as an additional control on implementing legislation under the treaty power, and the reason. for that third provision, the "which" clause, is specifically to limit the doctrine of Missouri against Holland. We have done that, in other words, to make it plain that when Congress legislates under treaties, it is limited to its constitutional powers, in the absence of treaty; in other words, that its constitutional powers to legislate are not enlarged by reason of the existence of the treaty, beyond the powers which it would have in the absence of the treaty. We think that it will have the effect of keeping State and Federal power completely in balance.

If that particular third idea is put into a constitutional amendment, then the balance between State and Federal power will stay as it is, unless changed by constitutional amendment. The Federal Government will not have greater power by virtue of having ratified

a treaty and the States will not have less power by virtue of the Federal Government having ratified a treaty.

The reason behind that, I think, is severalfold. We have made pretty elaborate studies of the whole historical background of the treaty power. We have read all the documents from the Federalist, and the debates and all that sort of thing. Of course, it is perfectly plain to anyone that it never was intended by the founding fathers that the treaty clause should be a device for unsettling the balance between State and Federal power. When the Constitution was originally adopted, you will remember, there were a number of States that had large doubts about the extent of the powers conferred, so, 10 amendments were added, 2 years later, in 1791, to make very, very sure, that the Government was a government of delegated powers, and that what was not delegated was reserved. Of course, the Court, in determining the scope and effect of the Constitution, of the tenth amendment, first determined what has been delegated, and what is necessarily implied from the delegated power. The rest is necessarily reserved under the tenth amendment.

Now, it is very, very clear that the founding fathers intended to maintain the balance between State and Federal power that was originally established. They did not intend this modern concept at all. If you make a treaty with Canada, or Lebanon, or Iran, on some subject, and laws and State constitutions pass out the window-that never was their concept. They were very zealous of their State rights. Now, by adding the third idea in the "which clause" which is the last portion of our proposal, we make it very, very clear, that the Congress does not acquire additional legislative powers, by virtue of a treaty on the subject, but that Federal, congressional power remains the same as it is under the Constitution, unaffected by the ratification of the treaty, and the State power remains the same under the Constitution, unaffected by the ratification of the treaty, and that the balance between State and Federal power cannot be changed, except by constitutional amendment.

Those are the principal points incorporated in our amendment. I want to make one additional point which our proposal covers, and removes a very substantial problem of constitutional construction. It is set forth in our report. It is with respect to the situation of the first amendment. It is a point which has been overlooked, I think, by many writers on the subject.

We pointed it out as early, I think, as 1950. The first amendment is the amendment which we say protects the freedom of speech, freedom of press, and freedom of religion; but what is the language of the first amendment? That so-called protection is in this form:

Congress shall pass no law respecting those three subjects.

"Congress shall pass no law"-it is a limitation on Congress. Congress does not make treaties. The treaty power is vested in the President and the Senate. If you will not only read the constitutional language itself, but go back to the articles, you will see that the founding fathers determined that they should set up a separate agency for the making of treaties. There was discussion as to whether Congress should make them. There was discussion as to whether the President should make them alone. They determined not to put it in Congress. They determined not to put it in the President. They

determined to set up a separate treaty-making agency, consisting of the President and the Senate. The limitations in the first amendment with respect to freedom of speech, press, and religion are only limitations on Congress. They are not a limitation on the treatymaking power.

To show you how important that is, the United Nations has in the works now a so-called treaty on freedom of information which deals with freedom of speech and freedom of press.

The United Nations proposed Covenant on Human Rights has in it provisions relating to freedom of speech and freedom of press, which are to be dealt with under the treaty-making power, providing that no treaty shall have internal effect in the country unless Congress legislates, will squarely bring into effect the limitation of the first amendment, that Congress shall pass no law, which, at the present time is a wide-open question.

Professor Chafee, in an article he wrote in the Wisconsin Law Review, a year or two ago, undertook to address himself to this particular problem, that the first amendment is a limitation on Congress and not on the treaty-making power. He comes to the conclusion, as I recollect it-and he is here and can speak for himself-that while it looks very serious, we must assume that the court will ultimately adopt that kind of a construction.

We are not satisfied with that sort of speculation. We believe that that gap should be closed, and that there should be no doubt whatsoever that nothing can be done under the treaty-making power that Congress is prohibited from doing under the first amendment.

In our study, Mr. Chairman, we confined ourselves to a study of the treaty-making power. We did not deal in our report, nor in our recommendation, to the American Bar Association last February, with the subject of executive agreements. In our report, which you have in evidence, on page 13, we point out some of the literature on executive agreements, and we point out the controversies that are raging with respect to executive agreements.

There are some gentlemen, as you know-Dr. Wallace McClure is one, and Mr. McDougal of the Yale law faculty is another-who speak of treaties and executive agreements as interchange instruments of national policy, as though the President could do anything by executive agreement that also could otherwise be done by treaty. That is a concept that I do not agree with. It was very sharply, and I think effectively answered by Professor Borchard in a later article in a Yale journal, which was a reply to the other professors, and I think the rationality of that position is quite simple.

If the founding fathers had intended that an executive agreement should be an interchangeable instrument of national policy with the treaty, then, of course, what was the point of putting anything in the Constitution about the treaty-making power at all? It would have brought us right back to that proposition, which the founding fathers rejected, when they discussed whether the President alone should have the power to make treaties. They rejected that idea and they said they rejected the idea that the whole Congress should make treaties. They finally arrived at the solution that the treaties should be made by the President and the Senate.

The idea that an executive agreement is interchangeable with a treaty, I think, is repudiated from the day the Constitution was

In

written. I do not think there is any question about it whatsoever. However, power grows by what it feeds on. The executive agreement problem was not a serious problem until relatively recent times. past times, I think the executive department in Washington-and this can be historically established-took the position that all major policies between us and foreign countries should be governed by treaty. That constitutional provision was put in there for that purpose. It was also recognized by them that there are many, what you might call, ministerial situations, not permanent policy situations, where agreements have to be made from day to day on this, that and the other subject, by the State Department and the President, because they do not involve matters of permanent national policy that need not approach the dignity of the treaty. Of course, when that concept was proposed-and Dr. McClure wrote his thesis on executive agreements and first put forward this idea of interchangeability, which, I say, repudiates the idea of the founding fathers-the area of executive agreements was much larger than was supposed-and the President could ignore the Senate by executive agreement, although he would have the alternative method available to him of submitting it to the Senate in treaty form.

As I say, we think that that concept of interchangeability is wrong. Senator Bricker in his proposal approaches the subject in a manner that makes a good deal of sense.

It is our view-and I will be through here in a few moments so others can follow me that the matter of executive agreements first should be controlled by Congress. We do not think that executive agreements should rise or were ever intended to rise to the dignity of treaties; that there is a legitimate area for executive agreements, but executive agreements should not be used to bypass the treaty power, and it should be within the power of Congress to determine what those areas are.

In order to make my point very, very clear, to show the basis of congressional power in this field, I want to read into the record a statement from what I consider a very, very important case in American constitutional law. I think it received some considerable discussion a week ago last Monday in the Supreme Court in the Steel case. It is the case of Ex parte Quirin (317 U. S., p. 1). I read first from page 25:

Congress and the President, like the courts, possesses no power not derived from the Constitution. But one of the objects of the Constitution, as declared by its preamble, is to "provide for the common defense." As a means to that end the Constitution gives to Congress the power to "provide for the common defense," article I, section 8, clause 1; and "to raise and support armies"; "to provide and maintain a navy"; article I, section 8, clause 12, 13; and "to make rules for the government and regulation of the land and naval forces," article I, section 8, clause 14. Congress is given authority "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water," article I, section 8, clause 11; and "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations," article I, section 8, clause 10; and finally, the Constitution authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof," article I. section 8, clause 18.

Senator HENDRICKSON. Who wrote that opinion?

Mr. SCHWEPPE. This opinion was written by Mr. Justice Holmes and unanimously concurred in by the Court.