Members of the House of Delegates as of Jan. 12, 1953-Continued

Term expires

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Robert T. Barton, Jr., Mutual Bldg., Richmond 19. Assembly delegate..
Stuart B. Campbell, Wytheville.

Joseph H. Gordon, Puget Sound Bank Bldg., Washington State Bar Association...-
Tacoma 2.

Members of the House of Delegates as of Jan. 12, 1953-Continued

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Hatton W. Sumners, Southwestern Legal Center, Dallas 5, Tex..

Douglas Hudson, Marble Bldg., Fort Scott, Kans.

W. Carloss Morris, Jr., 1302 Rusk Ave., Houston 2, Tex.

Alfred J. Schweppe, Colman Bldg., Seattle 4, Wash.

William A. Sutherland, First National Bank Bldg., Atlanta 3, Ga. (Also: Ring Bldg., Washington 6. D. C.)..

W. E. Stanley, First National Bank Bldg., Wichita 2, Kans.
Floyd E. Thompson, 11 South LaSalle St., Chicago 3, Ill
Loyd Wright, 111 West Seventh Street, Los Angeles 14, Calif.

Mr. HOLMAN. This roster will show, Mr. Chairman, that the house of delegates of the American Bar Association is a representative body, representing all the bar associations of the State bars throughout the country, and representing the larger city bars throughout the country. The house of delegates is the official policy body of the American Bar Association. It outranks the board of governors. It of course outranks all sections and committees. No one is permitted to come down. here and make representations to a committee of Congress on any matter as expressing the official action of the American Bar Association unless the house of delegates has acted.

While the paid membership of the American Bar Association isthe last figure I think was 44,000-there are something like 160,000 lawyers in the United States, but these delegates, as this roster will show, are in the case of State bars elected by the State bar. So that delegate, by representation, represents the State bar.

The same is true of the city bar. So by and through representation, just as you gentlemen down here are elected to the Senate or the House of Representatives, the house of delegates has, through its representative capacity, the right to say that it represents the bar of the United States.

Now, Mr. Perlman will well remember that this section, or the council, vigorously opposed the action of the house in Feburary 1952, where the house of delegates after more than 2 years of study, passed a resolution for the need of a constitutional amendment and adopted a text for such amendment, which is before you gentlemen.

Again, in September last year, at San Francisco, the house of delegates also after official debate lasting a considerable time, passed a resolution for the need of including executive agreements and passed a recommended text for that, and Mr. Perlman's section opposed that.

Those votes were by an overwhelming majority. There was no actual head vote taken, but I talked with both the secretary and assistant secretary in Chicago the other day and he is ready to come here and testify under oath if necessary to tell you gentlemen that the vote was overwhelming in each instance.

Now, at Chicago the other day this small group-there having been no meeting of the section whatever on this matter, as it was admitted, and this report here having been drawn up in longhand on a Sunday and presented to Mr. Sweppe in longhand, was then mimeographed and presented to the house.

Now, the house of delegates as a matter of courtesy, unless there is something scurrilous in it, will receive a report from any section, but if it is a report that is antagonistic to the official position of the house, then they put on this proviso or reservation that nothing therein contained shall be construed as being the action of the house.

So that is the situation today, gentlemen. The house of delegates of the American Bar Association was represented by some two-hundred-and-fifty-odd lawyers who were there in a representative capacity. If I may say so, John Hagerty of the Canadian bar paid us a compliment last year at San Francisco that we were one of the great deliberative bodies of the world because we always had a fixed agenda. No man, even the president, is allowed to talk more than 10 minutes on a matter unless he has unanimous consent. Therefore, there can be no filibustering, matters are thrashed out in debate, with both sides being fully heard. The section was fully heard. The committee's report was fully heard and the vote was overwhelming.

When this came on before the house in Chicago last week, with this reservation on it, it was carried, I would say-wouldn't you, Charlieby at least 85 percent, there was a mere scattering of nays and those were the only votes you could construe as having had in mind any approval whatever of this criticism which Mr. Perlman has given here.

Now, of course it would be unthinkable even in the Congress of the United States or Senate or anywhere else that you could have a unanimous vote on any question, but the votes of the house on all these questions have been overwhelming in favor of the committee on peace and law and against the section, whether it was the council section. or section report as such.

Senator DIRKSEN. I have great respect for Mr. Perlman and for his legal attainments, and I did not want to be invidious in raising the question, but I remember the example of the group of tailors on Tooley Street who addressed a petition to the Queen which began, "We, the people of England." I think from time to time when it is said we represent this group or that group, the committee should as a matter of course make inquiries to see whose opinion it does represent.

Mr. PERLMAN. That is right, Senator, you are entirely right. I have here a statement that was prepared by Mr. Benjamin V. Cohen, who had been connected with our delegation to the United Nations many years. He made this statement to an informal group of Senators, and I asked him if I might have permission to submit it here and put it in your record.

The CHAIRMAN. Certainly.

Mr. PERLMAN. It is a very interesting and very scholarly presentation of the point.

(The material referred to follows:)

REMARKS OF BENJAMIN V. COHEN TO INFORMAL GROUP OF SENATORS AT DINNER AT CONTINENTAL HOTEL, FEBRUARY 9, 1953, ON THE PROPOSED BRICKER AMENDMENTS TO THE CONSTITUTION

Last year 58 Senators joined in sponsoring a constitutional amendment proposed by Senator Bricker which would impose substantial limitations on the power of the President and Senate to make treaties and agreements with foreign countries. This year 62 Senators have joined in sponsoring a slightly revised form of the proposed Bricker amendment.

In light of the fact that we are living in an increasingly interdependent world from which we cannot isolate ourselves, we should most seriously inquire into the reasons why it should be proposed at this time to deprive the Government of the United States of the powers with which the Founding Fathers deemed it wise to endow it. The Bricker amendment strikes not only at the constitutional powers of the President, but the constitutional powers of the Senate.

Fearing that these powers may be improvidently exercised, the Bricker amendment seeks to impose limitations on the treaty power, which would prevent the President with the advice and consent of the Senate making treaties which in their considered judgment were necessary to promote the safety and welfare of the Nation.

Fearing the future, the Bricker amendment would deprive the Federal Government the power which the Founding Fathers gave it to deal with the future. In its fears for the future of our democracy, the Bricker amendment evinces a profound distrust of the democratic process and of the competence of future Senates to determine what treaties will advance the freedom and welfare of the Nation. A historic review of the treaty provisions of the Constitution revea.s:

1. The Founding Fathers gave careful consideration to the treaty provisions of the Constitution. They considered it necessary to give to the Federal Government broad treaty powers, subject only to the concurrence of two-thirds of the Senate. They believed that treaties once ratified should become the law of the land and should override all State laws to the contrary.

2. Unti! the present controversy regarding the Bricker amendment arose, the major criticisms directed against the treaty provisions of the Constitution have been that the two-thirds of the Senate requirement makes the ratification of treaties too difficult and, at times has enabled a small minority to thwart the clear national will. The Congress in many important instances has in fact chosen to authorize-by the exercise of its legislative powers-important agreements with foreign governments, rather than to follow the more difficult and less flexible treaty-making procedure.

The reciprocal trade agreements, the lend-lease agreements, the Greek-Turkish aid agreements, the European aid or Marshall plan agreements, the agreements establishing the International Bank and Monetary Fund were all authorized by the Congress acting under its legislative powers.

3. There is no evidence whatsoever that the treaty-making power of the Senate has been improvidently or too lightly exercised.

4. There has been considerable controversy as to the appropriate limits of the power of the President to make executive agreements without prior approval of the Congress. Few, if any, have denied the power absolutely and unconditionally and probably no one has been able to offer a satisfactory definition of the power.

On balance the exercise of the power from the Louisiana Purchase to the exchange of destroyers and bases has served the national interest. Executive agreements not authorized or confirmed by the Congress are neither treaties nor laws within the meaning of the supremacy clause. Except insofar as they are in fact executed and carried out, they probably impose no obligation on the Congress to honor them by appropriations or otherwise. The unavoidable risks which they involve relate not to their future or executory promises but to a change in the situation created by their execution which cannot be undone.

Congress, for example, was under no obligation to appropriate money to build the bases on the sites which we obtained under the exchange of destroyers and bases agreement, but Congress could not recover the destroyers actually delivered.

For over 160 years we have lived under the Constitution with its existing treaty provisions. There is nothing in the record of the past which would call for a drastic revision such as is proposed by the Bricker amendment.

The proponents of the Bricker amendment are motivated by their fears of the future-not by any record of past abuses. Their anxiety centers about measures which have been discussed in the United Nations, relating to human rights. They are unwilling to wait and debate these measures on their merits as, and if, these measures ever come before the Senate in treaty form for ratification. They urge the adoption of a constitutional amendment which would make it virtually impossible for present and any future Senate to consider the ratification of any convention relating to human rights in any form, even though it does no more than commit us to uphold our own constitutional principles. The proponents of the Bricker amendment have been particularly concerned about three measures under discussion in the United Nations, only one of which has come before the Senate for ratification. That is the genocide convention. Genocide has been recognized as a crime under international law by the Nuremberg judgments and by the resolutions of the General Assembly. There may be a question whether the genocide convention adds significantly to what is already international law. Were it not for the fact that the United States actively participated in drafting the convention as a part of its struggle against this most horrible of international crimes and its failure to ratify might be misunderstood, one might question the wisdom of pressing for ratification in view of the unreasoning fears expressed by the opponents of the convention. But whether the genocide convention is or is not pressed for ratification in the immediate future, the United States in view of its world leadership should not incapacitate itself from ever joining in a convention which would commit us to prosecute under our own laws those guilty of the crime of genocide, whenever the President and two-thirds of the Senate conceive such action to be in our national interest.

The other two measures which have provoked anxiety among the proponents of the Bricker amendment have not even come before the Senate.

The United States originally hoped to increase freedom of information in the world through the drafting of treaty. In the discussions in the United Nations it developed that many of the other nations were not willing to go far enough to make the effort to secure a treaty on the freedom of information worthwhile and the United States announced that it could not support the draft under consideration. The proponents of the Bricker amendment need not be concerned about this treaty on the freedom of information which the executive branch of the United States Government has rejected. Because we have failed on our first attempt to get a good treaty is no reason why we should put ourselves in a position that we could not join in a good treaty if and when one could be obtained.

The other measure which causes the proponents of the Bricker amendment the gravest anxiety is the Covenant on Human Rights. But this covenant is still in the drafting stage. The discussions have revealed serious differences even among friendly states. There is serious question whether efforts to compromise our differences will provide the basis for a satisfactory covenant. There is serious question whether a covenant of compromises will not obscure the great principles of the Declaration of Human Rights, which the Assembly unanimously adopted-not as binding law but as guiding principle.

The executive branch of the Government will undoubtedly review the whole subject before any covenant is submitted to the Senate for ratification. If a covenant is submitted which is not satisfactory, it is not likely to be ratified by the Senate. But we cannot say to the world that we abandon our interest in human rights and our willingness ever to join in any convention which will insure the observance of human rights.

The fear that in subscribing to a Covenant of Human Rights we would abandon our own constitutional rights as guaranteed by the Bill of Rights is without foundation. The Supreme Court has repeatedly stated that a treaty cannot authorize what the Constitution forbids (Geofroy v. Riggs, 133 U. S. 258, 267). Even the present draft of the Covenant of Human Rights, which the proponents of the Bricker amendment find unsatisfactory provides expressly that "nothing in this covenant may be interpreted as limiting or derogating from any of the rights and freedoms which may be guaranteed under the laws of any contracting state."

Let us not forget that the first suggestion for a Commission on Human Rights and Fundamental Freedoms was made by the Honorable John W. Davis in a radio address on February 4, 1945, prior to the San Francisco Conference. In that address Mr. Davis said: