without the advice and consent of two-thirds of the Senators present. You do not point to a single instance in our 163 years of experience where you say the President and Senate have failed to "give the American people protection," nor do you advance a single reason why you believe they might betray the American people in the future.

Our views are shared by Prof. Arthur E. Sutherland, Jr., who has published a critical analysis of the Bricker, ABA, and other proposed amendments entitled "Restricting the Treaty Power," in the Harvard Law Review for June 1952. As Professor Sutherland concludes:

"Wise men have sometimes found difficulty in meeting problems even under today's treaty restrictions. We should do well to trust our descendants at least as far as our ancestors trusted us."

We cannot

The Bricker and house of delegates proposals deliberately encumber the treatymaking procedure and shrink the Nation's treaty-making power. share your view that they are either necessary or desirable. We are sending a copy of this letter to Senator McCarran. Very truly yours,

THEODORE PEARSON,

Chairman, Committee on Federal Legislation.

DANA CONVERSE BACKUS, Chairman, Committee on International Law.

HOLMAN, MICKELWAIT, MARION, BLACK & PERKINS,

Re Senate Joint Resolution 130.

Seattle, Wash. June 12, 1952.

MY DEAR SENATOR MCCARRAN AND OTHER MEMBERS OF THE SENATE COMMITTEE ON THE JUDICIARY: I am taking the liberty of sending you and the other members of your subcommittee a copy of a letter which I have directed to Mr. Theodore Pearson, chairman of the Committee on Federal Legislation, and Mr. Dana Converse Backus, chairman of the Committee on International Law, of the Association of the Bar of the City of New York. Since I was not present at the time the Report of the Bar of the City of New York was presented to the subcommittee and I had not been favored with a copy of it at the time I testified, I respectfully request that the observations made with respect to that report as set forth in the enclosed letter be read into the record. So far as I am aware, the bar of the city of New York is the only bar association in the United States that has adopted a report opposing the idea of a constitutional amendment to protect American rights against treaty law, whereas many other bar associations have already gone on record as favoring such a proposal. In due course I believe a very large number of bar associations throughout the country will do likewise. Yours sincerely,

FRANK E. HOLMAN.

June 11, 1952.

HOLMAN, MICKELWAIT, MARION, BLACK & PERKINS,

Mr. THEODORE PEARSON,
Chairman, Committee on Federal Legislation;
Mr. DANA CONVERSE BACKUS,

Chairman, Committee on International Law, Association of the Bar of the City of New York, 42 West Forty-fourth Street, New York, N. Y. GENTLEMAN: I have just had the opportunity of reading and studying the printed copy of the report of your committees with respect to the joint resolution proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements (S. J. Res. 130). I recognize that your report is particularly directed to an examination of the text of Senator Bricker's proposal but by implication at least you are opposed to any amendment of the Constitution of the United States with respect to the treaty power, and I assume that your opposition extends to the form of amendment proposed by the American Bar Association 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."

However, it is quite apparent that in the opinion of your committees the Constitution of the United States and our Bill of Rights should not be changed, amended, or abridged by a treaty. You say at page 12, for example:

"We cannot believe that the Bill of Rights would be held to apply only to legislative action. If the President, for example, issued an Executive order which concededly transgressed the Bill of Rights, we have no doubt that the order would be held unconstitutional even though it was solely within the executive sphere and without any participation by Congress. It strains credulity to imagine that the Supreme Court would allow an abridgement of the Bill of Rights because it does not mention the President and the Senate."

You say earlier, at page 10:

"Starting from the common ground that no sensible person wants to permit the free exercise of these rights to be abridged or prohibited, it appears to us that the only important questions in considering this part of the proposed section 1 are, first, whether a treaty or executive agreement can effect such abridgement or prohibition, and second, whether any danger that a treaty or executive agreement could have this effect warrants including an advance prohibition in the Constitution." You therefore seem to agree with Senator Bricker and the American Bar Association that no treaty should be allowed to amend or abridge the Constitution of the United States. Senator Bricker and the American Bar Association fear that the tenor or dicta of earlier judicial decisions to that effect was abruptly arrested by Missouri v. Holland (252 U. S. 416), and that an even more dangerous threat is involved in the doctrine announced by Mr. Justice Sutherland in the Curtiss-Wright case (299 U. S. 204) that the treaty-making power, being an attribute of sovereignty, is inherent in the National Government apart from any grant in the Constitution. It would appear, therefore, that some doubt at least has been thrown upon the salutary developing doctrine of the earlier cases by the pronouncements of the later cases. If this is true, why should anyone oppose the setting at rest of this doubt for all time by an appropriate constitutional amendment in simple terms stating, as does the first line of the American Bar Association proposal, that "a provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect"?

The second point which the American Bar Association amendment seeks to reach is the matter of a treaty becoming internal law without being implemented by national legislation. With a few exceptions, which upon examination are not true exceptions, in all other nations of the world a treaty does not become internal law until implemented by national legislation. France is sometimes cited as an exception. Regardless of the similarity of the provisions of the present French Constitution, France, among other things, is not a Federal Republic like ours. There is no analogous doctrine of States' rights as between French lesser units of government and the Central Government as exists between our States and our National Government. French law as to most matters is national in extent, whereas much of our law with respect to internal matters is within the orbit of State legislation. Canada is nearer to our situation, where the Provinces in Canada have jurisdiction over certain internal matters which are the subject of Provincial legislation. Why should America not be on the same footing as Canada and England with respect to the necessity of implementing treaties by legislation? Your report seems to have advanced no answer to this point of putting the United States on a parity with other nations in the matter of treaties not being self-executing.

The third point involved is that, under the American Bar Association proposal, legislation implementing a treaty must be enacted under the "delegated powers" which the Congress would possess in the absence of a treaty. This merely is a corollary to the first point. It would do no good to say that no provision of a treaty which conflicts with the Constitution should be of force or effect and then to permit the Congress to implement a treaty by legislation which would be unconstitutional if the Congress enacted the legislation in the absence of a treaty. All the fears (originally thought up by Professor Chafee) that the treaty-making power would be unduly hampered by the requirement that implementing legislation must be within the delegated powers of the Congress have now been completely answered in the very scholarly article by Dr. George A. Finch in the June 1952 issue of the American Bar Association Journal at page 467 et seq.

In your conclusion 1 in connection with your reference to the fear that our freedoms will be abridged by use of the treaty power, you state:

"The main problem here seems to be whether there is any reasonable cause to believe that the Constitution as it stands permits any such abridgement. Be

lieving as we do that there is not, an amendment merely declaring that the law is what it is would not seem objectionable on that ground."

Of course, your group may believe there is no such "reasonable cause," but a majority of the American Bar Association and most of the lawyers throughout the United States believe there is "reasonable cause" to believe that a treaty may abridge certain of our basic rights as fixed and recognized by the Constitution. The very fact that there is this difference of opinion and that you are willing to say an amendment in this particular would not seem objectionable clearly indicates that to set at rest all doubt such an amendment would be desirable instead of undesirable as you finally conclude.

Your conclusion 2 does not particularly interest me at this time.

Your conclusion 3 with respect to the use of the treaty-making power to change or abridge internal law would leave our protection in this matter merely to a subsequent act of Congress or a provision in the treaty that the treaty is not self-executing. But why should our protection in this regard not also be set at rest? Why first get ourselves into a treaty which requires subsequent law to change it or why risk the matter of putting into each treaty a provision that it is not self-executing? The negotiation of treaties will proceed with greater safety to America if we are protected by a constitutional amendment.

Your conclusion 4 deals with executive agreements and you say:

*

an executive agreement cannot nullify Federal law, and Congress can override executive agreements by legislation as it can treaties, and can frustrate most executive agreements because they require efther implementing legislation or appropriations."

But, again, why depend on subsequent legislation? The damage is often done before the matter of subsequent nullifying legislation can be considered. Witness the executive agreements made at Yalta and elsewhere. A constitutional provision would have the effect of making Presidents and Secretaries of State somewhat more careful about the kind and character of executive agreements they enter into on the spur of the moment while being wined and dined in foreign lands.

The end result of your report seems to me merely this: that you approve the principle that a treaty should not amend or abridge the Constitution of the United States, but you are unwilling to incorporate this into a constitutional amendment; that you approve the idea that a treaty should not make domestic law for the people of the United States if they can get Congress to pass a subsequent act nullifying or superseding a treaty, but you are unwilling to give the American people this protection in the original instance; that you approve the theory that a bad executive agreement can be nullified by Federal legislation and say that the Congress can override it by legislation, but you are unwilling as an initial protection to the American people to have this theory incorporated in a constitutional amendment.

Since I have been devoting considerable time and attention to the foregoing matters for the past 4 years, I hope you will not consider it inappropriate for me to make the above comments on your report.

I am sending a copy of this letter to Senator McCarran, chairman of the Senate Committee on the Judiciary.

Yours sincerely,

FRANK E. HOLMAN.

MEMORANDUM IN REPLY TO THE MEMORANDUM OF THE DEPARTMENT OF JUSTICE ON SENATE JOINT RESOLUTION 130, EIGHTY-SECOND CONGRESS, PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE AGREEMENTS

On June 19, 1952, the Department of Justice, through the then Solicitor General of the United States, Philip B. Perlman, filed with the subcommittee of the Senate Committee on the Judiciary a memorandum entitled as above set forth in which is outlined its objections to every part of the constitutional amendment proposed by Senate Joint Resolution 130, as well as the proposed constitutional amendment suggested by the American Bar Association. That memorandum states:

"Accordingly, the Department opposes any of the suggested amendments to the treaty power" (p. 2), and

"For the reasons stated in this memorandum, the Department of Justice opposes all of the proposed amendments to the Constitution" (p. 40).

This reply will answer the memorandum of the Department of Justice only insofar as it applies to the constitutional amendment recomended by the American Bar Association through action of its house of delegates on February 26, 1952, to the Congress of the United States for consideration, and which proposed amendment reads 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.'

It would seem that the most logical and helpful approach would be as follows, and this memorandum will be divided accordingly.

I. The Scope of the Treaty Power Today and the Power of Treaties;

II. The Suggestions of the American Bar Association as They Affect the Treaty Power; and

III. An Evaluation of the Ultimate Position of the Department of Justice in Its Memorandum and Consideration of Some of Its Objections to the American Bar Association's Proposed Amendment.

The memorandum of the Department of Justice seems, as will appear, to be a plea for ever-expanding Federal power, through the treaty route, over the States and over the individual citizens. This treaty route is capable of being used to regulate the everyday relationships between the individual citizen and his government, both State and national, in almost limitless fields where the Federal Government is incompetent to act aside from the treaty mechanism. It is already proposed that this mechanism should be used for the creation of international crimes with which our citizens might be charged for actions by them within the United States and for which they might be triable not only by local courts but also by an international criminal court. The draft statute of the proposed International Criminal Court would eliminate both indictment of a grand jury and trial by jury, and fails to afford adequate protection against the introduction at the trial of the accused of an involuntary confession made by him.2

Our National Government is and should be one of limited and delegated powers, and the issue presented is whether a constitutional amendment is necessary in order to preserve the essential balance between Federal power and the powers of the States, and to protect the individual citizen against the imposition of civil and criminal liability and against impingement upon the rights and freedoms of the individual citizen by the Federal Government through the exercise of the treaty-making power.

POINT I. THE SCOPE OF THE TREATY POWER AND THE POWER OF TREATIES

As is so well known as to scarcely need reference, the treaty power is conferred by article 2, section 2, paragraph 2 of the Constitution upon the President "by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur."

The power of treaties (the supremacy clause) is provided for in article VI, second sentence, as follows:

"This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be 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 distinction between the treaty power and the power of treaties should be kept in mind at every stage of any discussion of this subject.

The two provisions quoted above, together with the "necessary and proper" clause (art. I, sec. 8, last clause), giving Congress power "to make all laws which and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof," make up the constitutional background of the discussion.

1 Report of Standing Committee on Peace and Law Through United Nations, February 1, 1952, second printing, March 15, 1952.

Genocide Convention, art. I. VI; draft statute for an International Criminal Court formulated at Geneva in the summer of 1951, and appearing as Appendix C to the Report of the Committee on Peace and Law, February 1, 1952, p. 31. This draft statute is fully discussed in articles appearing in the American Bar Journal for August 1952.

3 We use the phrase "treaty power" to describe the power to make and the scope of treaties. We use the phrase "power of treaties" to indicate the consequences of the exercise of the treaty power.

What is the scope of the treaty power?

"At no time during the convention [1787 was there any suggestion that the treaty power should be limited as to scope or subject matter" (Department of Justice memorandum, p. 5, hereafter referred to as "D. of J. M.").

"The framers of the Constitution carefully refrained from stating any limitation on the scope of the treaty power" (D. of J. M., p. 17).

"As has been noted, the power to enter into treaties was granted by the Constitution without any express limitation as to its scope or as to the subject matter of possible treaties" (D. of J. M., p. 26).

"Accordingly, the Supreme Court has uniformly stated that, 'the treaty power of the United States extends to all proper subjects of negotiation between our Government and the governments of other nations. Geofroy v. Riggs (133 U. S. 258, 266)'" (D. of J. M., p. 27).

"Such treaties could have the force of domestic law if they were self-executing, or could be implemented by legislation under the 'necessary and proper' clause" (D. of J. M., p. 27).

The American Bar Association's proposal would limit this tremendously broad treaty power not with respect to external affairs, but only with respect to its use to upset the essential balance between Federal power and the powers of the States and as a means of creating internal law imposing civil and criminal liability on the individual citizen and impinging on the rights and liberties of the individual citizens in areas where the Congress could not so do in the absence of a treaty.

While the Department of Justice quotes (D. of J. M., p. 29) with approval from the Seventy-fifth Federalist Paper written by Alexander Hamilton a part of the following sentence regarding the treaty power:

"Though this provision has been assailed on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan." [Italics added to indicate part quoted in D. of J. M.]

the course of its argument clearly indicates that it is not in sympathy with all of that Seventy-fifth Federalist Paper, for in it and as an argument in favor of accepting this treaty power, Hamilton said:

"The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are, contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign." [Italics added.] Contrast this with the language of Mr. Justice Holmes in Missouri v. Holland, (252 U. S. 416, at p. 433 et seq.):

* * The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the tenth amendment. We must consider what this country has become in deciding what that amendment has reserved.

66

* * No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power. * * *

"Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power.

[Emphasis added.]

Here we find the real point of departure between the protagonists of a Federal Government practically all powerful through the treaty mechanism and those would retain some substance, some meaning in the tenth amendment reading: "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."

The treaty power has always been present in the Constitution, but it is inaccurate to say that "The issues raised by the proposed amendments are not new. Most of them were considered fully during the drafting and adoption of the Constitution" (D. of J. M., p. 2). The issues are new, because the circumstances of treaty making and the present extent and objectives of treaties are entirely new. Multilateral treaties, of the character of the Charter of the United Nations and the many proposed multilateral treaties which are growing out of that document, were unknown in 1787. They are a product of a new concept of world organization. It is proposed to use the treaty power to forward such organiza