something similar to the United Nations is presented in the future, we want to have some constitutional amendment to prevent us from going into it. I just want to find out the purpose.

Reverend Boss. Earlier I made the point, of course, I think those who voted against it sincerely, and I have never raised any question concerning their motives, evidently had the judgment that it was not the thing to do, it should not be ratified. The question came up in connection with the declaration of human rights and the covenant. My answer to that was that as it is set up and at least up to this point has within itself the statements which do not make it and would not make it effective domestically until there was legislative action on the part of the Federal Government and on the part of the States.

I also pointed out under the present arrangement, treaty arrangement, any reservation which the Senate would want to make or place upon any item or any one of the articles of such a covenant can be done under our present law, and I do not see how the constitutional amendment proposed would assist that any.

Senator KEFAUVER. Dr. Boss, it seems to me that in the discussion of pro and con of the covenant of human rights, that is in the question that addresses itself to this committee.

The CHAIRMAN. Mr. Boss, we will have to excuse you for a little while. Mr. Perlman is here, former Solicitor General. He has an appointment at 1 o'clock, as I understand it.

Is Mr. Perlman here?

Mr. PERLMAN. Yes.

The CHAIRMAN. You have an appointment at 1 o'clock, Mr. Perlman?

Mr. PERLMAN. I have to catch a train at 1.

The CHAIRMAN. Would you mind continuing your question after he has finished?

Senator KEFAUVER. I felt that the testimony on the human rights covenant is not a matter of jurisdiction for this committee. That should be referred to the Foreign Relations Committee. It has not been acted upon and discussion whether that is pro or con is academic before this committee.

Reverend Boss. Mr. Chairman, I think you have heard me pretty fully.

Mr. SMITHEY. There is one question I want to ask. I think I can complete it, Senator, in ample time.

Mr. Boss, as I understand your testimony before the committee, you place great stress upon the power of the Senate to insert such reservations as it may choose to any treaty which might be submitted to the Senate. Now, in that regard, I would like to call your attention to the testimony by Mr. Rix, Mr. Carl Rix, who is a past president of the American Bar Association, before this committee on the first day of the hearing, and ask you if you had this in mind, if you were aware of this at the time you made those observations in your statement. Mr. Rix says:

It is popularly supposed that we can do by reservation nearly anything we want, to preserve the rights of this country, but it is agreed by all of us and by Mr. Mitchell and Mr. Davis and others that no reservation or no action of Congress or no action of parties to the treaties can deprive the Congress of the United States of the power which exists under the Constitution.

If I understand Mr. Rix correctly, he means there the power of Congress to enact legislation necessary and proper to carry out the treaty. Now, have you considered that with respect to reservations placed in treaties by the Senate?

Reverend Boss. Yes. The Senate can restrict it or it can enact legislation to make it effective within the domestic order. It can do either one.

Mr. SMITHEY. In other words, if we had a treaty which cut across the rights of citizens of the United States, although the Senate made a reservation to that treaty, the Congress could thereafter pass legislation in furtherance of that treaty despite the reservation?

Reverend Boss. It would depend on the nature of the reservation. If the reservation were that it was not effective until domestic legislation were enacted, then it would have to go and enact legislation. I do have that in mind.

The CHAIRMAN. Thank you very much, Dr. Boss.

Reverend Boss. Mr. Chairman, you have been very generous in your questioning. I appreciate it very much. I seem now to have learned much more about law than I knew when I came in.

The CHAIRMAN. You want to come back when your regular organization testifies, you will learn some more. We will be glad to have you here at that time.

Reverend Boss. Thank you very much. I have to go back to the board of governors now, or I would remain.

The CHAIRMAN. Mr. Perlman.

STATEMENT OF PHILIP B. PERLMAN, OF MARYLAND, FORMERLY SOLICITOR GENERAL OF THE UNITED STATES

Senator DIRKSEN. May I ask at the outset, you are not appearing officially? You are appearing as an individual?

Mr. PERLMAN. That is right. I was Solicitor General of the United States from August 1947 until August 1952.

The CHAIRMAN. You hold no official position now at all?

Mr. PERLMAN. None at all. I think it is explained here in the

statement.

During the last session of the 82d Congress, a subcommittee of the Senate Committee on the Judiciary had before it for consideration Senate Joint Resolution 130, introduced by Senator Bricker, proposing a new article to the Constitution of the United States relating to the making of treaties and executive agreements. The proposed article remained in committee at the end of the session, and so did not come to a vote.

Senate Joint Resolution 1, introduced at this session, is a modified version of the proposal considered by the 82d Congress. The amendments now being considered eliminate some of the objections made to Senate Joint Resolution 130, but it still appears to be both unnecessary and a source of future difficulty and trouble for the Nation.

During the period when Senate Joint Resolution 130 was being considered, I filed, as Solicitor General, on behalf of the Department of Justice, a statement as to the views at that time of the Department. That statement contained a discussion of the origin of the provisions relating to treatymaking, and showed with what care they were de

bated and written during the Constitutional Convention. The reasons still seem to be applicable. We were, at the time our study was made, unable to agree with the sponsors of the proposed new article that there was any sufficient cause to amend the Constitution of the United States so as to limit the treatymaking powers of the Nation, the authority of the Senate over the making of treaties, and the authority of President, as exercised since the founding of the Republic, to make executive agreements.

The substantial revisions made in Senate Joint Resolution 1 do not eliminate the objections made to the proposal which was abandoned. In fact, although less complicated in substance, it would introduce confusion and uncertainty in our foreign relations, would limit in many important respects the ability of the executive departments to negotiate treaties for submission to the Senate, and would nullify the applicability of the great body of precedents and interpretations built up by the President, the Senate, and the courts over the long period of years since the Constitution was first ratified by the States.

Section 1 of Senate Joint Resolution 1 would invalidate any provision of a treaty which denies or abridges any right enumerated in the Constitution. If this provision is intended to assert the supremacy of the Constitution over treaties, it is unnecessary, because the section would merely state what the law is and always has been. If, on the other hand, it is construed to have some meaning other than that, then the section will invite searches from time to time, as controversies over particular provisions of treaties may arise, to discover just what rights are enumerated in the Constitution, and just how or to what extent, if any, they are affected by a provision of a treaty. Arguments will be made as to the existence of private or even public rights, presumably to be immunized and isolated from any relationship whatever to the economic, political or social status of the Nation as it may be affected by agreements with other sovereign powers.

Section 2 of Senate Joint Resolution 1 contains restrictions on the treatymaking powers which seem to be in derogation of the authority of the United States to function as one of the sovereign powers of the world. It is a provision of the character which a despotic sovereign might impose upon a satellite country, but certainly no such provision has any place in the Constitution of the United States. It provides that

No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States.

This section, if it becomes part of the Constitution, would immediately throw doubt-if it would not prohibit it entirely on the authority of the United States to enter into international engagements for restrictions on the use of atomic energy, for general disarmament, and for other treaties through which wars may be outlawed and prevented, and peace-enduring peace-may some day shower its bless ings upon mankind. These goals, if and when reached, will require effective international inspection. It was on that very point that efforts to limit the use of atomic energy for peaceful purposes failed. The United States advocated international inspection as an imperatively needed guaranty that there would be no violations of disarma

ment terms and conditions, but the Soviet Union objected, and the effort had to be postponed. If the time is ever ripe again to confer such a boon on all the peoples of the world, the United States would be prohibited under the provisions of section 2 from participating. It is indisputable that without our participation there could be no restrictions on the manufacture of atomic and other weapons of war. It is unthinkable that section 2 could be seriously considered at any time, and especially during a period when the free peoples of the world are living in an era of cold and hot wars, with the fear of total conflict mounting day by day.

I emphasize the injury to the United States, in its efforts to bring about worldwide peace, from the provisions of section 2 of Senate Joint Resolution 1. But that is not the sole objection, although it may be by far the most important. The section would prohibit participation by the United States in international control or inspection under treaties to limit the production, manufacture, and use of narcotics. Then, too, the section may operate to interfere with the effective enforcement of international measures against white slavery, and it may adversely affect measures for the extradition of criminals.

It is hardly necessary to point out to the members of this committee that the language through which the prohibition against the exercise by foreign powers and international organizations of authority over rights of citizens of the United States within the United States may be susceptible of different interpretations. For example, it is not clear whether the restriction applies solely to rights within the United States of citizens within the States. And as others have indicated, if it applies to citizens outside of the United States, treaties for reciprocal nondiscriminatory treatment would be invalid in some instances.

The CHAIRMAN. Mr. Holman is here from the American Bar Association. I would like to have you ask some questions on this section 2, if you would.

Mr. PERLMAN. May I finish this statement, please?

The CHAIRMAN. Before you go further, I would like to have him ask some questions.

Mr. HOLMAN. Mr. Chairman, Mr. Perlman and I have never agreed on any matter of law that I know of, and would not now. But as I understand section 2, which is drawn differently from the American Bar section, it does apply and is intended to apply exactly as he states here:

within the United States, solely to the rights of citizens within the United States, and within the States.

There is no intention on Senator Bricker's part, as I understand it, that it would apply to citizens outside the United States. The matter of narcotics and atomic energy has traditionally been in the treatymaking field. I think it was quite clear when Mr. Finch testified that these objections pass out of the consideration.

I do not have any particular questions because I am sure Mr. Perlman will insist on his point of view as he did at the last hearing. But our position is that none of these matters are covered by this section 2.

The CHAIRMAN. Will you proceed, Mr. Perlman?

Mr. PERLMAN. I want to call attention to certain facts. I may have done it in this statement and if I have not, I will later. This is what I wanted to do and we happened to arrive at that point in the statement.

Senator DIRKSEN. Would you like to have a question at this point? Mr. PERLMAN. No, let me proceed, if you do not mind, Senator.

I call this committee's attention, and it is especially interesting in view of Mr. Holman's statement, to the report on this proposed article made within the past few days to the house of delegates of the American Bar Association by the Section of International and Comparative Law. The report was presented by Chief Judge John J. Parker of the Circuit Court of Appeals for the Fourth Circuit, one of the most eminent legal scholars in the Nation, who is regarded as one of our finest judges. I believe that the Section of International and Comparative Law of the American Bar Association has in excess of 1,000 members. The report is critical of each section of the proposed article, and enumerates other ambiguities in section 2.

May I at this point read what that report said with respect to section 2? [Reading: ]

Ambiguities

Senator KEFAUVER. Mr. Chairman, is Judge Parker's report in the record?

The CHAIRMAN. He is putting it in right now.

Mr. PERLMAN. I am going to ask permission to put the whole report in.

Ambiguities-Even if there were determined to be no fundamental objections to these proposed restrictions on the treatymaking power, the new draft should be clarified in certain respects, including:

1. Sections 1 and 2, what is meant by any right "enumerated" in the Constitution? For example, are rights under the due-process clause of the fourteenth amendment enumerated? In attempting to restate in the Constitution the generally accepted rule that treaties are subject to the Constiution, the risk is thus run of narrowing the rule. That is certainly not to be desired.

2. In view of the specific reference in section 2 to "rights of citizens of the United States," does section 1 relate to rights of citizens and aliens? Does it relate to citizens outside of the United States? If it does, the usual treaties which provide for reciprocal nondiscrimination against citizens or one country when in another would be invalid in certain cases.

3. In section 2, what is the meaning of "any other matter essentially within the domestic jurisdiction of the United States"?

Mr. SMITHEY. Mr. Perlman, have you ever heard of that phrase before?

Mr. PERLMAN. Yes, sir, it is in the Charter of the United Nations. Mr. SMITHEY. Did these same people ask any questions concerning the meaning of it at the time it was placed in the United Nations Charter?

Mr. PERLMAN. I do not know. It certainly was not before this committee. It is in their proposed amendment to the Constitution of the United States, which is a very different matter. It becomes pertinent here. I just call your attention to the fact that there is not any attempt in this report, Mr. Chairman, to answer that quesion, but it is stated as one that the committee should answer or at leastThe CHAIRMAN. Have you this report?

Mr. PERLMAN. Yes, sir.

The CHAIRMAN. Let the record show it is filed in its entirety.