Senator BRICKER. I mentioned one or two other fields this morning in which there would be great difficulty if it were left to the States themselves. There is the matter of recognition of automobile licenses and the question of ownership of land has been discussed here already, I think very ably. What have you to suggest on that? Senator SMITH. May I ask you right there, couldn't that be done by way of interstate compacts? Mr. DEUTSCH. That is what we were mentioning. Senator BRICKER. There is no question about that. Mr. DEUTSCH. We mentioned compacts between the States or between the States and the Federal Government. Senator BRICKER. That could be done individually by the States through compact or through agreement with the Federal Government or through the Federal Government if the courts would stretch the commerce clause sufficiently. Mr. DEUTSCH. Or some other clause. Senator BRICKER. Yes. Mr. DEUTSCH. I think maybe "stretch" is a bad word. I would say "give them adequately wide scope." Senator BRICKER. That is what they have been doing. Mr. DEUTSCH. One of our former Congressmen from Louisiana, James O'Connor, made the statement that he was a great believer in the elasticity of statutory construction. Senator BRICKER. That is what we are trying to get at, of course. Mr. DEUTSCH. Exactly. And as for your further questions, I am in complete accord with what has already been said. I see no insurmountable obstacle in the land questions, in the practicing of the profession, in the carrying on of trade, and I see no reason why that cannot be done through the States, or if any such great problem is ever met which cannot be solved in that way, ultimately we can have a constitutional amendment to deal with it just as we have had 22 so far. We had to enact one to limit the President's term after 160 years, and we can have others as occasions may arise in that regard. Senator BRICKER. It is that field in which I was vitally interested here, that we do not preclude proper Federal action. Mr. DEUTSCH. That is right. The CHAIRMAN. Senator Smith, have you a question? Senator SMITH. It was answered. I have no other question. The CHAIRMAN. Senator Watkins? Senator WATKINS. I have no questions. The CHAIRMAN. How about the staff? Mr. DEUTSCH. May I hold it just a moment to complete the tail end portion of my presentation? The CHAIRMAN. Yes. Mr. DEUTSCH. In the September 1952 issue of the American Bar Association Journal appears an article entitled "The Need for a Treaty Amendment-a Reply," which was published over my name, but which, as a practical matter, states the position of the American Bar Association on this matter, and I would ask leave to put that into the record along with my statement. The CHAIRMAN. The record will so show. (The article referred to is as follows:) THE NEED FOR A TREATY AMENDMENT: A RESTATEMENT AND A REPLY (By Eberhard P. Deutsch, of the Louisiana Bar (New Orleans)) Henry St. George Tucker, a distinguished legal scholar, for some years an outstanding member of Congress from Virginia, and a former president of the American Bar Association,1 in his great book, Limitations on the Treaty-Making Power, published in 1915, characterized the treaty clause of the Constitution (article VI) as a "Trojan Horse," ready to unload its hidden soldiery into our midst, destroying State laws and constitutions, and leaving behind the wreckage of the dream of the Founding Fathers which envisioned maintenance of the established constitutional balance between State and Federal power, and preservation of the Bill of Rights intact. Why do we need a constitutional amendment to regulate the treaty-power? Why does the treaty-making power under the constitutional provisions which have not been changed since 1789, now give rise to such a powerful movement to amend those provisions? There are three reasons: (1) In what is otherwise a government of limited and delegated powers under the Constitution, no express limitation exists on the treaty-power, and the existence of any implied limitation is shrouded in doubt. (2) A basic change of viewpoint is being carried into effect with respect to the functions and purpose of treaties. A veritable avalanche of new treaties is being sponsored by the United Nations and its affiliated organizations in the social, economic, cultural, and civil and political fields. It is reliably reported that they have 200 treaties "in the works." (3) Persistent efforts have been made during the past two decades to find additional constitutional basis for expansion of the powers of the Federal Government, and the treaty-power has been seized upon as a conveniently available vehicle for such expansion. While acts of Congress are valid only when made "in pursuance of" the Constitution, treaties are the supreme law of the land if they are made "under the authority of the United States." 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; neither by reservation nor understanding can this power of Congress be controlled if Congress chooses to exercise it.2 The authority of Congress under the treaty clause was expounded in the leading case of Missouri v. Holland (252 U. S. 416 (1920)), in which it was held that Congress has power under a treaty to enact legislation which would be unconstitutional in the absence of a treaty. Professor Lauterpacht, of Cambridge University, England, a recognized contemporary authority on international law, has characterized the decision in Missouri v. Holland as a construction "dangerously approaching that of a constitutional amendment." The trend toward an unlimited treaty power was further developed in United States v. CurtissWright Corporation (299 U. S. 304, 316-19 (1936)), in which the Court in broad dicta quite erroneously regarded the treaty power not as a delegated power but as a power inherent in sovereignty." 2 11904-5; see 75 A. B. A. Rep. 553 (1950); see also Who Was Who, volume 1, page 1256. The Trojan horse" characterization occurs on page 339 of his book. 2 This statement represents the agreed views of the American Bar Association's com mittee on peace and law through United Nations, and of that association's section of international and comparative law in a joint report. See Report of Committee on Peace and Law, September 1, 1951, page 36. An International Bill of Rights of Man, p. 179. It is believed (and the decisions based on the law of nations cited by the court confirm that belief) that the Curtiss-Wright decision confuses the position of the United States as viewed under interntaional law by foreign nations with the position of the United States in international relations as a matter of domestic constitutional law. Under the Constitution the treaty power is expressly delegated to the United States (art. II, sec. 2) and expressly prohibited to the States (art. I, sec. 10). Other cases accurately refer to the treaty power as having been "delegated expressly.' See Missouri v. Holland (252 U. S. 416, 432) and cases cited in Report of Committee on Peace and Law, February 1, 1952 (third printing, May 1, 1952), page 8. The report referred to analyzes and criticizes the Curtiss-Wright case. A similar criticism of that case is found in Mr. Justice Jackson's concurring opinion in the Steel Seizure cases, decided June 2, 1952, footnote 2, in which he says, "Much of the Court's opinion is dictum," and points out that the case involved solely power expressly delegated to the President in an act of Congress. While some argument has been made that such dicta as contained in The Cherokee Tobacco (11 Wall. 616, 620-1 (1870)) and Geofroy v. Riggs (133 U. S. 258, 267 (1889))—the treaty power does not "authorize what the Constitution forbids"-should abate all fears on this subject," the fact remains that Missouri v. Holland, supra, and United States v. Curtiss-Wright Corporation, supra, go in the opposite direction toward an unlimited treaty power. In Missouri v. Holland, supra, it was recognized that 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. The Curtiss-Wright case, supra, dealt only with an express 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 treatymaking 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 treatymaking power is a delegated power." QUESTION SHOULD BE SETTLED ONCE AND FOR ALL TIME 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 treatymaking power cannot be used for purposes in conflict with the Constitu tion. Richard Henry Lee, of Virginia, and Patrick Henry, of Virginia, both strongly objected to the treaty clause at the time the adoption of the Constitution was under debate. It is clear from the sharp debates over the lodgment of the treaty power, and the effect of its exercise, that the founding fathers definitely visualized the possible need for amendment. Jefferson, who, by reason of his ambassadorship to France, was not a member of the Constitutional Convention, did concern himself greatly with ratification and with the first 10 amendments, and in his Manual of Parliamentary Practice had this to say: "By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaties, and cannot be otherwise regulated. "It must have meant to except out all those rights reserved to the States; for surely the President and the Senate cannot do by treaty what the whole Government is interdicted from doing in any way." [Italics supplied.] The addition of the Bill of Rights to the original Constitution was thought to have counteracted the dangerous loophole in the treaty supremacy clause of article VI and to control its interpretation. It is certainly plain from the whole history of the Constitution and of the first 10 amendments 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. At the time the Constitution was adopted and until recently, treaties entered into by the United States were compacts in the primary sense of duties and obligations imposed on the contracting States, and not on individual citizens. Alexander Hamilton stated that treaties "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." Today, however, treaties are being proposed, and at least one has been submitted to the Senate for ratification, which impose civil and criminal liability for acts of citizens of the United States, or which affect rights of and impose See State Department Bulletin, December 31, 1951, p. 1062. In United States v. New Orleans, 10 Pet. 662, 763 (1836), the Court said: "The Government of the United States, as was well observed in the argument, is one of limited powers .It can exercise authority over no subiects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the Federal jurisdiction, nor can it be enlarged under the treaty making power. The reasoning of this case conflicts with Missouri v. Holland. See 37 A. B. A. J. 856, footnote 131. See footnote 4. See Eberhard P. Deutsch, the Treaty-Making Clause: A Decision for the American People, 37 A. B. A. J. 662 (1951). 3 Elliot's Debates (2d ed.) 503. 82 Farrand, Records of the Federal Convention (rev. ed. 1937), p. 370; see also 3 Farrand 136. 286-287; 1 Farrand 164, 245; 2 Farrand 297. The Federalist, No. 70. duties and obligations on, citizens of the United States, in areas heretofore within the reserved powers of the States.1 The late Chief Justice Charles Evans Hughes, former Secretary of State and former Judge of the Permanent Court of International Justice at The Hague, speaking as President of the American Society of International Law, said to that body on April 26, 1929: "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 attached to it, and so far there has been no disposition to find in anything relating to the external concerns of the Nation a 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 treatymaking power. The Supreme Court has expressed a doubt whether there could be any such. That is, the doubt has been expressed in one of its opinions. But if there is a limitation to be implied, I should say it might be found in the nature of the treatymaking power. "What is the power to make a treaty? What is the object of the power? The normal scope of the power can be found in the appropriate object of the power. The power is to deal with foreign nations with regard to matters of international concern. It is not a power intended to be exercised, it may be assumed, with respect to matters that have no relation to international concerns. * "But if we attempted to use the treatymaking power to deal with matters which did not pertain to our external relations but to control matters which normally and appropriately were within the local jurisdictions of the States, then I say there might be ground for implying a limitation upon the treatymaking 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 treatymaking power" [Italics supplied.] But the present State Department takes a position contrary to the implied limitation suggested by the late Chief Justice. In a statement released by the State Department in September 1950, with foreword by President Truman, it is said in the opening sentence: "There is no longer any real distinction between 'domestic' and 'foreign' affairs." 12 Moreover, notwithstanding the provision in chapter I, article 2, paragraph 7, of the United Nations Charter that "nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state," the broad claim is made by proponents of the use of treaties to enact world law binding within the United States that "Once a matter has become, in one way or another, the subject of regulation by the United Nations, be it by resolution of the General Assembly, or by convention between member states at the instance of the United Nations, that subject ceases to be a matter being 'essentially within the domestic jurisdiction of the member states.' As a matter of fact, such a position represents the official view of the United Nations, as well as of the member states that have voted in favor of the Universal Declaration of Human Rights." 19 13 10 Florence E. Allen, the Treaty As an Instrument of Legislation (Macmillan Co., New York, 1952), pp. 10 and 11. Judge Allen is a United States circuit judge for the sixth circuit. 11 Proceedings of the American Society of International Law, 1929, pp. 194-196. Opening sentence of State Department Publication 3972, Foreign Policy Series 26, with foreword by President Truman. 13 Moses Moskowitz, Is the U. N.'s Bill of Human Rights Dangerous?, 35 A. B. A. J. 283, 285 (1949). Compare also the statement of John P. Humphrey, formerly Director of the Division of Human Rights of the United Nations: "What the United Nations is trying to do is revolutionary in character. Human rights are largely a matter of relationships between the state and individual, and therefore a matter which has been traditionally regarded as being within the domestic jurisdiction of the states. What is now being proposed is, in effect, the creation of some kind of supranational supervision of this relationship between the state and its citizens." (Annals of American Academy of Political and Social Science, January 1949.) And Mr. Moskowitz in the article Just referred to, says that "the idea of a supranational supervision of the relationship of a state to its own citizens is the real crux of the matter, revolutionary as it may appear. The growing tendency to undertake to create a basis for enlarging Federal power by congressional enactments under the treaty clause, not otherwise within the constitutional grant of legislative power in the absence of a treaty, is illustrated by the Report of the President's Committee on Civil Rights: "The Human Rights Commission of the United Nations is working on a detailed international bill of rights designed to give more specific meaning to the general purpose 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." 99 14 Indeed, it is asserted (Report of Section of International and Comparative Law to the House of Delegates of the American Bar Association, Mid-Year 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 treatymaking powers. . . . There is no reason why such courts may not be created in the exercise of the treatymaking power." In other words, it is claimed that the United States Government can provide under the treaty making power for the trial abroad of an American citizen, for offenses committed here, by methods and in places (see sixth amendment) which the Constitution forbids, and without the safeguards which the Constitution commands.1 DISSENT IN STEEL CASE SHOWS THE DANGER In the Steel Seizure cases," Chief Justice Vinson, dissenting, with the support of two other judges, made the pronouncement that the United Nations Charter and the North Atlantic Treaty, being treaties, whose purpose is the suppression of aggression, give the President the power to seize private property, though he lacks statutory authority, and though the majority of the Court holds he has no such power under the Constitution, and that he is denied the power under the fifth amendment to take property without due process of law and without just compensation. If two additional judges had accepted the view of the Chief Justice, the treaty known as United Nations Charter and the North Atlantic Treaty, made by the President and consented to by the Senate, would have effected a fundamental change in the American form of government without the Congress, as such, or the States or the people (to whom all powers not delegated are reserved under the 10th amendment) having anything to say about the matter. The laws of the several States require lawyers to be first and foremost citizens of the United States and to swear allegiance to the Constitution of the United States. The treaty with Israel recently transmitted to the Senate by the President and the State Department provides that nationals of either country shall not be barred from practicing professions in the other country by reason of their being aliens, if they comply with other requirements, such as residence and competence. Under the most-favored-nation clause included in many treaties to which the United States is a party, the foregoing provision, if it goes into effect, would automatically be applicable to the nationals of a very large number of countries. In a number of States teachers in primary and secondary schools are required to be citizens of the United States. Many bar associations have protested this clause in the Israel treaty to the Senate Foreign Relations Committee as unsound and dangerous, and as an improper invasion of the rights reserved to the States. As an actual recent instance of a treaty changing domestic law, we have the Warsaw Convention relating to international air transportation, approved by the United States Senate some years ago. It now appears that this treaty deprives American citizens of their right to complete trial by jury, because it is the essence of a constitutional jury trial in this country in a civil case that the jury shall determine the amount of damage that is fair and reasonable. The Warsaw Convention contains a provision limiting the damage liability of international air carriers for personal injury or death of passengers in aircraft disasters to the sum of 125,000 gold French francs, or the equivalent, in United States currency, of approximately $8,300, a hopelessly inadequate sum. The limitation of 14 Report of President's Committee on Civil Rights, paragraph 10. 15 See Report of Committee on Peace and Law, September 1, 1951, p. 30. |