was oiled with "the very best butter." Nevertheless the watch stopped! So with these codes, covenants, and conventions. They are undoubtedly filled with high. sounding language. Nevertheless, our freedoms may be impaired by their use.

EXHIBIT J

[American Bar Association]
TREATY-MAKING POWER

CONTROL OF THE TREATY-MAKING POWER BY CONSTITUTIONAL AMENDMENT

At the annual meeting of the American Bar Association at Washington, D. C., in September 1950, the house of delegates, on the recommendation of the committee on peace and law, adopted a resolution instructing that committee and also the section of international and comparative law, jointly and separately, to study the desirability of amending the Constitution of the United States in respect of the treaty-making power, and that joint or separate reports be made to the house of delegates. (See Reports of ABA, vol. 75, 1950, p. 117.)

Such joint studies have been carried forward by the committee and the section. (See September 1, 1951, Report of the Standing Committee on Peace and Law, p. 5 and 35.) A further meeting was held on this subject at Chicago on January 26, 1952, between representatives of the committee and the section. As a result of these meetings, it is now plain that no agreement exists on the question of amending the Constitution of the United States to limit the treaty-making power. So far as we are presently informed, the section does not consider a constitutional amendment either necessary or desirable. The committee on peace and law believes that such an amendment is both desirable and necessary and proposes the following amendment to the house of delegates for recommendation to Congress :

"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."

The committee on peace and law believes that, with a veritable barrage of new treaties sponsored by the United Nations in the social, economic, and political field, the balance between Federal and State power cannot be sufficiently safeguarded, and the making of domestic law by the treaty method sufficiently limited by inclusion of protective clauses in, or by reservations to, the treaties themselves. Your committee is of the opinion that the only effective answer to the extension of Federal power over the internal affairs of the States by the treaty method is an appropriate constitutional amendment.

In considering the subject of treaties, cognizance must be had of (1) their international effect as agreements between nations, and (2) their domestic effect in the United States of America as the supreme law of the land. (See September 1, 1951, Report of the Committee on Peace and Law, p. 6.)

It is agreed between the section and the committee 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 treaty, Congress would not have power under the Constitution to pass such legislation; that by neither reservation nor understanding can this power of Congress be controlled if Congress chooses to exercise it (September 1, 1951, Report of Committee on Peace and Law, p. 36).

It is thus apparent that the treaty clause of the Constitution in article VI contains, as stated by Henry St. George Tucker, a former president of the American Bar Association, all the elements of a "Trojan horse" (Tucker, Limitations on the Treaty-Making Power, p. 339) in imposing domestic law on the several States of the Union through treaties with foreign nations, which, in the absence of such treaties, could not be imposed, and thus bringing about a change in the balance between Federal and State power, which, except for the treaty, could not be accomplished under the Constitution. It is also clear that the founding fathers in the sharp debates over the lodgement of the treaty power, and the effect of its exercise, definitely visualized the possible need for amendment (2 Farrand, The Records of the Federal Convention (rev. ed. 1937), p. 370). It is well-settled that the treaty-making power extends to all proper subjects of negotiation between our Government and foreign nations (Asakura v. Seattle,

265 U. S. 332, 341). While your committee has heretofore assumed that there are still some things "which are essentially within the domestic jurisdiction of the State" (United Nations Charter, art. 2 (7) ), it notes the State Department's position that "there is no longer any real distinction between 'domestic' and 'foreign' affairs" (opening sentence of State Department Publication 3972, Foreign Affairs Policy Series 26, released September 1950, with foreword by President Truman). And it is asserted that any subject whatever that is dealt with in a treaty between two nations becomes, by virtue of that fact, a subject of international concern.

Although the treaty power has been held by the Supreme Court to extend to all proper subjects of international negotiation, it has not yet been judicially determined by that Court whether the relationship of government to its own citizens is a proper subject of international negotiation, as distinguished from the relationship of a government with another government or with the nationals of another government-the traditional treaty field. But since the State Department has undertaken to negotiate so extensively with foreign nations in his new area, covered in part by the Federal Bill of Rights, and the bills of rights and statutes of the several States, regarding the relationship of a government to its own citizens, and on the precautionary assumption that this course might be judicially approved, your committee has prepared its draft amendment to the Constitution in respect of the treaty-making power with that assumption in view. Your committee's proposal will not affect the present method of negotiating and ratifying treaties (to wit, by the President and the Senate under article II of the Constitution); but treaties will not become internal law in the United States, binding upon the States, unless, and then only to the extent that the whole Congress acts by separate legislation within its delegated powers, apart from its power to pass all laws necessary and proper to implement treaties. Such an amendment will put the world on notice that such a limitation on our treaty powers exists and will put us on substantial parity with other nations in the treaty field. Under such a clause, a commitment on the part of the United States in a treaty to implement the treaty by legislation "in accordance with its constitutional processes" would be squarely within the limitation.

To a proper understanding of the purpose and effect of this amendment, we refer to the existing state of constitutional law with respect to treaties as recently discussed at length. (See September 1, 1950, Report of your Committee, pp. 16-23; see also Eberhard P. Deutsch, The Treaty Making Clause: A Decision for the American People, American Bar Association Journal, September 1951; Frank E. Holman, Treaty Law Making: A Blank Check for Writing a New Constitution, American Bar Association Journal, September 1950; Denys P. Myers, Treaty and Law Under the Constitution, State Department Bulletin, March 10. 1952.)

Briefly summarized, article II, section 2, of the Constitution, delegates to the President the power to make treaties, with the advice and consent of the Senate. Article I, section 10, provides that "no state shall enter into any treaty, alliance, or confederation." Article VI, paragraph 2, provides that all laws made in pursuance of the Constitution, and all treaties 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 State to the contrary notwithstanding. The tenth amendment provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

It will be observed that, while under article VI laws of the United States are the supreme law of the land only if made in pursuance of the Constitution, treaties are declared to be the supreme law of the land if they are made under the authority of the United States. It is not required that treaties be made "in pursuance of" the Constitution. Richard Henry Lee of Virginia and Patrick Henry of Virginia both strongly obiected to this provision concerning treaties at the time the adoption of the Constitution was under debate. (See Eberhard P. Deutsch, supra, American Bar Association Journal, September 1951, p. 662.) The Supreme Court in United States v. Curtiss-Wright Export Corp. (299 U. S. 304), in a broad dictum quite unnecessary to the decision, stated:

66

* * The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs" (pp. 315-316). and that

66* * * the investment of the Federal Government with the powers of

external sovereignty did not depend upon the affirmative grants of the Constitution" (p. 318).

It is believed (and the decisions based on the law of nations cited by the court tend to confirm this belief) that the statements above quoted confuse the position of the United States Government as viewed by foreign nations from the standpoint of international law with the position of the United States Government in international relations as a matter of domestic constitutional law; and that, as domestic constitutional law, these statements are unsound (1) because in article II, section 2, the treaty-making power is expressly delegated, (2) because article I, section 10, denies to the States the power to "enter into any treaty, alliance, or confederation,” and (3) because under the tenth amendment "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"-language which seems specifically to negate any concept of inherent sovereignty in the United States. The treaty power is a power specifically delegated to the Federal Government and specifically denied to the States. Other cases more accurately refer to the treaty power as having been "delegated expressly." (See Missouri v. Holland, 252 U. S. 416, 432; U. S. v. Samples, 258 Fed. 479, affirmed sub nom. Missouri v. Holland, supra; Baldwin v. Franks, 120 U. S. 678, 682; U. S. v. Rockefeller, 260 Fed. 346; U. S. v. Selkirk, 258 Fed. 775.) The language of article VI requiring a treaty merely to be made under the authority of the United States rather than in pursuance to the Constitution (as is the case with statutes) resulted in the decision of Missouri v. Holland (252 U. S. 416, 432) to the effect that under a treaty Congress may exercise legislative powers which it would not have under the Constitution, in the absence of the treaty. Under Missouri v. Holland, if the subject of the treaty is a proper subject of negotiation between governments, Congress may pass any legislation under the treaty that it sees fit under the "necessary and proper" clause of the Constitution (art. I, sec. 8) regardless of what may be the constitutional limitations on Congress apart from the treaty.

To show how this notion has taken hold in important circles, we quote from the report of the President's committee on civil rights:

""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' (Report of Civil Rights Committee, par. 10)."

Indeed, it is asserted (Report of Section of International and Comparative Law to House of Delegates of American Bar Association, Midwinter Meeting, February 25-26, 1952) that "so far as the requirement of indictment by grand jury and trial by jury are concerned, these apply only to trials in the Federal courts, and can have no application to an international court set up by a group of nations in the exercise of their treaty-making power * * * there is no reason why such courts may not be created in the exercise of the treaty-making power."

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

The purpose and effect of the draft constitutional amendment proposed by your committee in respect of the treaty-making power may be summarized as follows:

(1) It is intended to remove any possible doubt that a treaty must be consistent with the Constitution and not in conflict with it. It is intended to give unequivocal constitutional effect to judicial dicta not yet incorporated in binding decisions, to the effect that "Congress cannot, by legislation, enlarge the Federal jurisdiction, nor can it be enlarged under the treaty-making power," and that no provision of a treaty which violates the Constitution or which is inconsistent with the nature of the Government of the United States or of the relation between the States and the United States, shall be valid (New Orleans v. United States, 10 Pet. 662, 736; The Cherokee Tobacco, 11 Wall. 616, 620-621; Holden v. Joy, 17 Wall. 211, 243; Geofroy v. Riggs, 133 U. S. 258, 267; and see Asakura v. Seattle, 265 U. S. 332, 341). And inferences drawn by some persons from Missouri v. Holland (252 U. S. 416), and U. S. v. Curtiss-Wright Corporation (299 U. S. 304, 316-319) that the treaty power is unlimited in any field of international concern, regardless of the Constitution, must in such an amendment be un

qualifiedly negatived, and any doubt on this score be forever set at rest. (See also United States 1. Pink, 315 U. S. 203, 233-234.)

Professor Zechariah Chafee, Jr., of the Harvard Law School, in a recent article published in the Harvard Law School Record, February 21, 1952, says:

"No doubt, the question whether the treaty power is subject to constitutional limitations has never been squarely decided by the Supreme Court, because no American treaty has come near enough to violating the Constitution to make the issue worth litigating."

While some argument has been made that such dicta as contained in The Cherokee Tobacco, supra, and Geofroy v. Riggs, supra (the treaty power does not "authorize what the Constitution forbids") should abate all fears on this subject (see State Department Bulletin, December 31, 1951, p. 1062), the fact remains that Missouri v. Holland, supra, and U. S. v. Curtiss-Wright Corporation, supra, go in the opposite direction of an unlimited treaty power.

In Missouri v. Holland, supra, the Constitution did forbid congressional control over migratory birds in the sense that the power was not delegated, and was, therefore, reserved to the States under the tenth amendment. It had been so held in cases cited in the Court's opinion. While the case might have been narrowly limited to holding that migratory birds were a proper subject for international negotiation, this was not done. The Curtiss-Wright case, supra, dealt only with a congressional delegation of power to the President authorizing him in certain circumstances to forbid the sale of arms to foreign countries, and did not involve the treaty-making power; nevertheless broad dicta were made with reference to it, which viewed from the standpoint of international law through the eyes of a foreign nation may be acceptable, but not as domestic constitutional law, under which the treaty-power is a delegated power.

In any event, since the last dozen years have seen hundreds of earlier decisions overruled and disregarded, it seems appropriate not to rest content on the dicta of early cases, but to settle by unequivocal language once and for all time that treaty power cannot be used for purposes in conflict with the Constitution.

In this connection, despite some of the dicta, it cannot be overlooked that the Federal courts to date have never declared a treaty unconstitutional, but have always found some way of sustaining it. See U. S. v. Thompson (258 Fed 257, 260), where the Court said:

"The power to make treaties has been frequently before the Supreme Court, and there is not a single instance in which a treaty has been declared unconstitutional * *

Ex parte Lerui (187 Cal. 20, 200 Pac. 954, 17 A. L. R. 630); 63 Corpus Juris, page 829; Butler, Treaty-Making Power, section 454; William Fleming, Danger to America: The Draft Covenant on Human Rights, American Bar Journal, November 1951, at page 856; and see U. S. v. Reid (C. A. 9) 73 F. (2d) 153, 155, where the Court said:

"It is doubtful if the courts have power to declare the plain terms of a treaty void and unenforceable. * *

(2) The proposed amendment will prevent a treaty from becoming internal law in the United States by force of its self-executing terms. It will make all treaties non-self-executing so far as domestic law is concerned until Congress acts. It removes the question of whether a treaty is self-executing or nonself-executing from the realm of judicial speculation and makes the internal effectiveness of the treaty within the United States depend exclusively on statute passed by both Houses of Congress. It will be definitely known by the several States that a treaty negotiated by the President and ratified by the Senate will have no internal effect in the several States or be binding on them until the whole Congress acts by way of legislating with respect to the treaty, and will afford the several States an opportunity to present their views to both Houses of Congress if the treaty proves to be objectionable as internal law in the several States. The proposal would make our situation as to the internal effect of treaties comparable to that of Great Britain and most other countries where treaties, while effective as international agreements, have no effect as internal law of the country unless incorporated into that law by act of Parliament or other comparable legislative body. (See Report of Committee on Peace and Law, September 1, 1950, pp. 9-12.)

As stated in Canadian Bar Review, November 1951 (p. 969):

"It is a well-established rule of Anglo-Canadian law that the provisions of a treaty, though binding upon the state under international law, do not become

part of the law of the land unless they are implemented by legislation. A treaty that has not been implemented by legislation cannot be a source of legal obligations affecting private rights."

(3) The proposed text of the amendment limits the language of the decision of Missouri v. Holland, supra, by making it clear that in legislating in respect of treaties, Congress shall have no power which it does not have under the Constitution, apart from its power to carry treaties into effect under the "necessary and proper clause" of the Constitution. The proposed amendment is believed to take care of the broad language in U. S. v. Curtiss-Wright Corporation, supra (299 U.S. 304), where the language of the court espouses the theory of inherent Federal power in the field of international relations. It is thought that the word "delegated" in the proposed text negatives any inherent power theory in the Federal Government in the field of international relations. Under the proposed amendment, the treaty-making power may not be utilized to create legislative power not otherwise existing in Congress to enact internal law binding on the several States, which would have the effect of abridging the reserved rights and powers of the States, imposing criminal and civil liabilities on citizens of the United States, or effecting rights or imposing duties on citizens of the United States.

The proposal will make it inescapably clear that the limitations on "Congress" in the first amendment that "Congress shall make no law" cannot be escaped by use of the treaty-making power under the claim that the President and Senate are a separate agency for treaty-making and are not subject to constitutional limitations on "Congress." (See Report of Committee on Peace and Law,

September 1, 1950, pp. 40-41.)

At the time the Constitution was adopted, and until recently, treaties were restricted to their traditional field of agreements between sovereign nations imposing duties and obligations on the contracting states and not on individual citizens. So long as they were so restricted, the need for a constitutional limitation on the treaty power was perhaps not so strikingly urgent. Today, however, treaties are being made and submitted to the Senate for ratification, and others are proposed, which impose criminal and civil liabilities directly on individual citizens, which affect the rights and impose duties on individual citizens-all in the area heretofore reserved for State legislation.

One proposal, for example, would subject cur citizens to be charged before and tried by an international criminal tribunal for offenses which have heretofore either not been offenses at all or have been regarded as domestic in character; and an American citizen would be denied the right to trial by jury and other essential constitutional safeguards which we accord to our own citizens when charged and tried in our own courts for domestic crimes.

Our National Government is and should be exclusively one of delegated and limited powers.

It was intended by our able and careful forefathers that all powers not expressly delegated in the Constitution, nor reasonably implied from those expressly granted, should be reserved to the States or to the people (amendment X; U. S. v. Butler, 297 U. S. 1). Thus, while the tenth amendment contributes nothing affirmatively to the power of the States and the people, it, by way of emphasis, makes it unqualifiedly plain that what was not delegated was emphatically reserved (U. S. v. Darby, 312 U. S. 100, 123-4; Fernandez v. Wiener, 326 U. S. 340, 362; Case v. Bowles, 327 U. S. 92, 102). The purpose was clearly to maintain a balance between State and Federal power as originally established in the Constitution. It certainly is plain from the whole history of the Convention that it was never intended, or even remotely contemplated, that the established constitutional balance between State and Federal power, could be substantially upset by the exercise of the treaty power. The ingenious schemes now so frequently put forward by ardent and impatient innovators to make new domestic law for the United States and to upset the balance between State and Federal power, by treaties and acts of Congress passed pursuant thereto, without regard to the other constitutional limitations, would have doubtless met a resounding and unanimous "No" from the founding fathers.

As a people, we have from the beginning opposed unlimited power in government and have committed ourselves to the principle of constitutional limitations. To secure the ratification of the Constitution, a Bill of Rights was added to insure, among other things, that the new Federal Government should not interfere with any rights retained by the people, and that all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, should reside, not in the Federal Government, but be reserved to the States respectively, or to the people. (See ninth and tenth amendments.)