[New York Herald Tribune, February 21, 1953] THE TREATYMAKING POWER Speaking on behalf of the New York City Bar Association, Mr. Dana Converse Backus made a strong, practical argument before the Senate Judiciary Committee against the proposed Bricker amendment to the constitutional provisions on treatymaking. Asserting that this amendment "would put serious barriers in the way of conducting our foreign affairs," Mr. Backus added: "In these dangerous times when obliteration can descend from the sky without warning and when there is greater need than ever to obtain agreements with other nations and perform those agreements, our country cannot afford the risk of such impediments." The Bricker amendment is directed primarily at the so-called supremacy clause of the Constitution, which gives treaties the status of the "supreme law of the land." The intent of this clause was to insure that treaty provisions would not be defied, after ratification, by the various State and local governments that might be affected. Because of the importance this gave to treaties, ratification by two-thirds of the Senate was required. In practice the Senate has zealously upheld its participation in treatymaking, scrutinizing treaties carefully and debating them at length. Nevertheless, Senator Bricker (and more than 60 Senators agree with him) has expressed fears that some day the American people may elect a President who may negotiate a treaty abridging vital American freedoms, at a time when there may be enough Senators willing to ratify such a document. He, therefore, would have any alteration in the laws or Constitution of the United States by treaty made subject to further determination by act or joint resolution of Congress. If enough Americans favored a treaty affecting the fundamentals of American citizenship to push it through the present ratification formula, it is more than probable that simple majorities could be obtained for it in Congress. Meanwhile, however, the operation of ordinary treaties, dealing with urgent matters of national security, would be gravely hampered by setting up an additional requirement for detailed interpretation of the documents. Mr. Bricker also proposes checks on executive agreements. It is a fact, however, that such agreements have been resorted to in part because of the difficulty of ratifying formal treaties; if the latter process is made even more cumbersome, Presidents may be tempted to evasions of the whole spirit of the Constitution in order to procure international action when time is of the essence. In other words, while trying to safeguard coming generations against what may seem to Senator Bricker to be folly, his amendment handicaps the present and raises the prospect of greater evils. It is an attempt to do what the American Founding Fathers wisely avoided, and what the drafters of foreign constitutions have sometimes done to their nations' disadvantage: to place the future in a straitjacket and to lay down detailed rules for every possible contingency. The CHAIRMAN. Read the sentences, anyway. Mr. MCKEE. Thank you, Senator. I would just like to finish with these two sentences: In other words, while trying to safeguard coming generations against what may seem to Senator Bricker to be folly, his amendment handicaps the present and raises the prospect of greater evils. It is an attemp to do what the American Founding Fathers wisely avoided, and what the drafters of foreign constitutions have sometimes done to their nations' disadvantage: to place the future in a straitjacket and to lay down detailed rules for every possible contingency. Thank you very much, Senator. The CHAIRMAN. Thank you. Now, when is our next meeting of this committee? Mr. SMITHEY. Senator, there is no meeting scheduled at this time. I think the subcommittee might recess subject to the call of the Chair. The CHAIRMAN. All right. We will recess subject to the call of the Chair. (Whereupon, at 5:10 p. m., a recess was taken to the call of the Chair.) TREATIES AND EXECUTIVE AGREEMENTS TUESDAY, MARCH 10, 1953 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met at 10 a. m., pursuant to recess, in room 457, Senate Office Building, Hon. William Langer (chairman of the committee) presiding. Present: Senator Langer. Present also: Wayne H. Smithey, subcommittee counsel. Will you call your first witness? Mr. SMITHEY. The first witness this morning is from the American Association of University Women, but before we proceed with the testimony of this witness the subcommittee has received a statement from the Congress of Industrial Organizations, which I submit, sir, and ask that it be included in the record. The CHAIRMAN. It will be filed. (The statement referred to is as follows:) Hon. WILLIAM LANGER, CONGRESS OF INDUSTRIAL ORGANIZATIONS, Chairman, Senate Judiciary Committee, Senate Office Building, Washington, D. C. DEAR SENATOR LANGER: The Congress of Industrial Organizations wishes to register its opposition to S. J. Res. 1, known as the Bricker amendment. We believe that it seriously hamstrings American efforts in the conduct of our foreign affairs; that it will negate the role of the United States within the United Nations and its specialized agencies, and through international negotiations to increase the security, the material well-being and the rights of individuals throughout the world. The first section of the proposed amendment states that "a provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect." In our opinion, this provision is entirely unnecessary for the Supreme Court of the United States has clearly indicated that no treaty can authorize what the Constitution forbids. The second section would prevent the United States from making various treaties and international arrangements through the United Nations which this country, in the past, considered highly advantageous to make. Here, too, the existing constitutional machinery provides adequate restraints against the makcan refuse to sign it. If he does sign it, its ratification can be killed by one-third of the Senate plus one. The Senate, moreover, can consent to a limited ratification and reject those parts considered undesirable. The third and fourth sections which deal with the enactment of legislation to make treaties effective in internal law, and with executive agreements, would seriously hamper our foreign relations during a time of peace and divide us from our allies in wartime. We feel that these amendments would not only render the President and Senate incapable of protecting American interests, but provisions of these proposed amendments would hamper effective American participation in the United Nations. At its last constitutional convention held in Atlantic City in December 1952, the CIO reaffirmed its support of the United Nations and the various specialized agencies such as ILO, UNESCO, and FAO and declared that "the United Nations is growing into a cohesive international community organization which the free world requires." If the Bricker amendment were adopted, the United States could not continue to secure the benefits of participation in international agreements or organizations concerned with rights of labor, communications, conservation, agriculture, health, banking, international crime, and other fields where international cooperation is essential to successful action. The Bricker amendment, taken as a whole, would turn the clock back to a period when the United States was a much less significant force in the world. In the present time of crisis and instability, United States leadership is vitally needed to help forge effective international instruments that will provide peace and security in freedom for the peoples of the world. The proposed constitutional amendment, while giving no protection that is not already written into constitutional law firmly and supported through long practice, would stultify and restrict such needed leadership. Its adoption would give comfort and aid to the totalitarian powers directed by the Soviet Union. For these reasons, the CIO opposes S. J. Res. 1. Respectfully, JACOB S. POTOFSKY, Chairman, CIO International Affairs Committee. Mr. SMITHEY. I have also the statement of the National Association of Manufacturers. Permission was received for inclusion on February 25, 1953. The CHAIRMAN. That will be filed. Hon. WILLIAM LANGER, NATIONAL ASSOCIATION OF MANUFACTURERS, Chairman, Senate Committee on the Judiciary, Senate Office Building, Washington 25, D. C. DEAR SENATOR LANGER: In accordance with the invitation transmitted with your letter of February 26, 1953, I am submitting herewith on behalf of the National Association of Manufacturers statement regarding Senate Joint Resolution 1 now pending before your committee. It is my understanding that this can be included as a part of the record of your committee's hearings on this measure. Additional copies are being sup plied to the other members of the Judiciary Committee. We appreciate very much your courtesy in this matter and trust that you will find the views expressed herein helpful to your committee in its consideration of this very important matter. Very truly yours, LAMBERT H. MILLER, General Counsel. STATEMENT OF LAW DEPARTMENT, NATIONAL ASSOCIATION OF MANUFACTURERS, FILED WITH THE SENATE COMMITTEE ON THE JUDICIARY ON SENATE JOINT RESOLUTION 1, PROPOSING A CONSTITUTIONAL AMENDMENT LIMITING THE TREATY POWER This statement is directed to Senate Joint Resolution 1, proposing an amendment to the United States Constitution limiting the making and effect of treaies and executive agreements. It is filed on behalf of the National Association of Manufacturers, a voluntary organization composed of more than 19,000 members, the greater percentage of which fall within the category commonly referred to as small business. The membership of this association is located throughout all of the 48 States of the United States. They are concerned with the recent and growing trend toward the promulgation by various international organizations in which the United States maintains membership, of international covenants and conventions which, upon ratification by the Senate, would have the force and effect of treaties. Many of these proposed international covenants and conventions deal with matters essentially within the domestic jurisdiction of the United States and the States thereof. Consequently, upon ratification, they would become a part of the "supreme law of the land" under article VI of the United States Constitution and thus would supersede all prior Federal law on the subject and all the statutes, constitutions, and judicial decisions of the States of the United States. Because such covenants and conventions could have a direct impact upon domestic and internal law in the United States, we agree with former Chief Justice Hughes when he stated, in effect, before the annual meeting of the American Society of International Law in 1929, that when any attempt is made to use the treatymaking power to deal with matters which do not pertain to our external relations and to control matters normally and appropriately within the local jurisdictions of the States, it must be resisted and grounds found for effectively limiting the treatymaking powers to matters relating to foreign affairs. This association has gone on record as being opposed to the formulation of international conventions which would have the effect of domestic legislation. In a June 27, 1952, statement adopted by its board of directors, the NAM stated: "As a principle of universal application it must be said that it is manifestly improper and impossible for an international group to formulate conventions having the dignity and effect of domestic legislation and which affect the relationship of an individual to his government and his political, social, and economic environment, that are adaptable to the requirements of countries offering an infinite variety of political, social, and economic structures. "With particular reference to the United States, it must be stated that this process does violence to our constitutional system of enactment of law. It bypasses the House of Representatives by depriving it of its constitutional role in the enactment of domestic legislation. Furthermore, such Senate ratification may result in the enactment of laws binding on individual States without the knowledge or consent of the legislatures of those States and may result in nullifying State laws or even provisions of the Constitution of the United States. Through this process people are deprived of the opportunity to be heard and to participate in the formulation of legislation affecting domestic affairs and lose safeguards which flow out of public hearings at which under our constitutional system our citizens may give their representatives considering proposed legislation the benefit of their judgment and counsel. Such conventions are in principle opposed to the tenet of representative government, and the United States Government should not be a party to this procedure." Accordingly, the NAM endorses the general principle and the objectives sought to be accomplished by the proposals pending before this committee to limit the treatymaking power. We also feel that Senator Bricker and other sponsors of his resolution should be commended for their efforts to "plug this constitutional loophole" designed to prevent treaties' and other international covenants and conventions from nullifying an indeterminable amout of Federal and State legislation without full consideration by the Congress. At the outset, we wish to make it clear that we are not in favor of any proposal or provisions thereof which would remove the authority of the President or his advisers from entering into treaties or other international agreements dealing with strictly external international relations between this Nation and other foreign nations. It is recognized that there are many matters which can properly be the subject of international compact. They should, however, deal with the relationship of a national or his government to foreign citizens or their government, such as for example, aviation, patents, and copyrights, shipping, or postal or communication matters. Nevertheless, we believe the treaty making power should be limited for the following reasons. 1. Ratified treaties and international conventions may result in domestic law The extent to which the Government of the United States is participating in world affairs necessarily involves resort to treaties and international agreements for purposes and in situations not contemplated by the framers of our Constitution when they drafted article VI. Under the provisions of that article, treaties and other international agreements or conventions of like scope acquire the status of the "supreme law of the land" upon ratification by the Senate, provided twothirds of the Senators present concur. It may be added parenthetically that the United States appears to be one of the few it not the only Government in the world where treaties become the supreme law of a nation without the approval of the whole national legislative body. |