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treaty clause is a Trojan horse which is about to unload its hidden soldiery in our midst. As a peace and law committee of the American Bar Association puts it, we need a constitutional amendment that will 'drive the beast outside the walls without more damage done, and with its remaining armored soldiery securely locked within.'" 4

In general this statement is representative of the whole school of thought. For this reason, and also because of Mr. Holman's position in the vanguard of the group, I have selected his statement as a model which can be analyzed in some detail in order to evaluate the real or alleged nature of "the great constitutional crisis." When the attack is winnowed down to its essentials, what is left as the real target is the United Nations and its activities in a limited field. In particular, it involves the effect on American law of such documents as the United Nations Charter," the Genocide Convention, the Declaration of Human Rights,' and the not-yet-completed draft Covenant on Human Rights. The argumentation of the proponents of constitutional amendment can be divided into two parts. One of these concerns the past and present effect of these documents on judicial thinking in this country. The other involves an alleged "loophole" in the Federal Constitution through which the executive branch of the Government and the Senate might crawl in a conspiracy to undermine American liberties by the ratification of "socialistic" treaties.

In regard to the judicial phase of the crisis, Mr. Holman referred to a "growing school of thought in the United Nations that the Declaration [of Human Rights] is an authoritative interpretation of the economic and social provisions of the charter which itself has been ratified as a treaty and in this respect the declaration and the charter have already had a considerable effect on judicial thinking in court decisions (Fujii v. State (217 Pac. (2d) 481) (opinion of Supreme Court of California filed April 17, 1952) and Perez v. Lippold (198 Pac. (2) 17))." The case of Fujii v. The State of California has caused widespread interest throughout the country. This interest is due at least in part to the fact that the case will have considerable effect on both constitutional and international law. By its decision of April 17, 1952,10 the Supreme Court of California invalidated the California alien-land law as being unconstitutional under the equal protection clause of the 14th amendment. The court rejected the reasoning of the lower court" that the law had been invalidated because of the human-rights provisions in the United Nations Charter.

The Supreme Court of California held that the alien-land law was invalid under the 14th amendment to the United States Constitution. Although the California Supreme Court split 4 to 3 on the issue of the constitutionality of the law under the 14th amendment, the court was unanimous in saying that the human-rights provisions of the United Nations Charter were non-self-executing and therefore did not operate to invalidate State laws. Chief Justice Gibson, speaking for three members of the court, said that it could not be disputed that the United Nations Charter is a treaty, and as such, under article VI of the United States Constitution, is the supreme law of the land. He pointed out, however, that a treaty "does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing." He then proceeded to show that articles 55 and 56, the human-rights provisions of the United Nations Charter, were neither intended to be, nor in fact were, self-executing. The opinion concluded by saying that “the charter provisions relied on by the plaintiff were not intended to supersede existing domestic legislation, and we cannot hold that they operate to invalidate the alien-land law." 12

The statement was reproduced in the Congressional Record of May 7, 1952, vol. 98, p. A2932 ff. 59 Stat. 1031, Treaty Series 993.

Executive 0. 81st Cong.. 1st sess.

1 Res. 217 (III) of the U. N. General Assembly, December 10, 1948; reproduced in Department of State Publication 3416, February 1949, p. 30.

The most recent draft was published as Annex I to the Report of the Seventh Session of the Commission on Human Rights (April 16-May 19, 1951). U. N. Doc. E/1992. E/CN. 4/640. The eighth session of the Commission (April-June 1952) is doing further work on the whole subject.

Loc. cit., note 4, supra.

20 242 Pac. (2d) 617.

217 Pac. (2d) 481.

12 242 Pac. (2d) 617, at 622; Justice Schauer, speaking for the three dissenting justices. said at p. 650: "I agree that the United Nations Charter, as presently constituted and accepted was not intended to, and does not, supersede existing domestic legislation of the United States or of the several States and Territories."

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ber of Commerce, Mr. Holman California of April 17, 1952, and

Catania in its decision of April 17, e district court of appeals) does gal effect, although, on further Supreme Court of the United States. case (decided by the same in the Fujii case is largely inemitment of the charter.'"

aling with the California aliens upon the basis of both State es a new light' and with no other ng the settled law of many years after discussing the charter con

of the United Nations Charter are, by the courts and legislatures of expresses the universal desire of thinkhis and opportunities. The charter importance and we must not permit For disparaged in either our domestic

as no "new beacon" for the California Charter? Chief Justice Gibson took and law under the 14th amendment the provisions of the United Nations the decisions of the United States Sutavite, further consideration of the

Supreme Court felt that the law in this were several "new beacons," other than court might be guided.

Mr. Holman assigns great significance Justice Gibson which says that courts the humane and enlightened objectives of man makes clear that in his view this Supreme Court that articles 55 and 56 of also seems to imply that there is somereevaluating the constitutionality of the reference to the United Nations and indeed

ever dreamt of-it has been an accepted articular type of statute is not determined ang it." The question of "equal protection nual protection of the laws" represents a set relation to the circumstances of contem

the basis of Mr. Holman's fears is Perez v. Lip

que operated in the mixed-marriage case (Perez also a member of the present court), after Declaration of Independence and the 5th and tion of the United States, then devoted a paraNations and concluded: 'In the face of these e pronouncements the matter of racial equalfollowing quotations from Justice Carter's con

The first quote precedes that referred to by

Waters, 294 U. S. 405, 55 S. Ct. 486, 79 L. Ed. 949. Delsis, 49 Columbia L. R. 735 (1949).

“It is my considered opinion that the statutes here involved (secs. 60, 69, Civil Code) are the product of ignorance, prejudice, and intolerance, and I am happy to join in the decision of this court holding that they are invalid and unenforceable. This decision is in harmony with the declarations contained in the Declaration of Independence which are guaranteed by the Bill of Rights and the 14th amendment to the Constitution of the United States and reaffirmed by the Charter of United Nations, United States Code Congressional Service, 1945, p. 964, that all human beings have equal rights regardless of race, color, or creed, and that the right to liberty and the pursuit of happiness is inalienable and may not be infringed because of race, color, or creed" (198 P. 2d 17, at 29). [Italics added.]

"It is my position that the statutes now before us never were constitutional. When first enacted, they violated the supreme law of the land as found in the Declaration of Independence. It is further my position that the 14th amendment to the Constitution of the United States invalidated the statutes here involved." (198 P.2d 17, at 32)."

It is also interesting to note that neither the opinion of the court nor that of the dissenting justices even mentioned the United Nations Charter.

It is Mr. Holman's contention that these cases are evidence that the Declaration of Human Rights and the human rights provisions in the United Nations Charter have already had a "considerable effect on judicial thinking in court decisions." Indeed, there are other cases from which such an inference might be drawn." But this effect, considerable or not, has been a natural one, which has been applied within the normal bounds of judicial safeguards. As Chief Justice Gibson pointed up in the Fujii case, judges, like other people, cannot and should not be impervious to the aspirations which were stated in the United Nations Charter. Should it be considered an alarming phenomenon that courts in reevaluating constitutional doctrines in the light of all of the circumstances of the present day are now moved to emphasize individual liberties? If a danger to the United States exists, it lies not in the constant judicial reevaluation of our rights, but in the possibility that the courts will discontinue this process and freeze our rights in an out-dated and rigid mold.

Having considered the evidence of a juridical nature which underlies the alleged constitutional crisis, we may now turn to consider the feared possibility of a conspiracy on the part of the Senate and executive branch to undermine the Constitution. The proponents of constitutional amendment are particularly concerned about such documents as the United Nations Charter, the Declaration of Human Rights, the Draft Covenant on Human Rights, and the Genocide Convention. For example, in his statement before the United States Chamber of Comnierce, Mr. Holman has said: "The Genocide Convention carries a provision for the extradition of American citizens for trial outside the United States where our constitutional trial procedures and Bill of Rights would not operate.1 A reading of the convention shows that this statement is misleading. Article VI of the convention, which deals with the venue of trials, reads as follows: "Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction."

Although a preliminary draft statute has been worked upon, there is no such international penal tribunal in existence today. And if one is constituted in the future, acceptance of its jurisdiction by the United States can be accomplished only if it is put in the form of a treaty. Since there is no international tribunal with jurisdiction over crimes of genocide, under the provisions of the convention trial is to take place in the state where the crime is committed. In the case of genocide committed in the United States, the trial of the accused would take place in the United States. If it were committed abroad, the trial would take place abroad. In the case of genocide committed abroad by a defendant who is later found in the United States, trial would be in the state where the crime cecurred, following extradition from this country. However, this is standard procedure for crimes in general. The Genocide Convention would change none of this.

"See, for example, the concurring opinion of Justices Black and Douglas in Oyama v. California, 332 U. S. 631, at 650; and the dissenting opinion of Justice Edgerton in Hurd v. Hodge, 162 F. 2d 233, at 245.

18 Loc. cit., note 4, supra, p. A 2933.

19

In referring to Article 14 of the Declaration of Human Rights Mr. Holman says that this provision, incorporated in a treaty, could mean "that in times of revolution in Cuba or Mexico or India or elsewhere thousands of aliens might legally claim a right of asylum here." 1 Such a conclusion seems rather wide of the mark. The provisions of the Declaration do not constitute legal obligations of states; they are "common standards of achievement" toward which it is hoped all nations will progress. Further, there is no provision for a "right to asylum" in the draft Covenant on Human Rights, which will be a legally binding document when completed and accepted by states. All suggestions for the inclusion of such a provision have been quickly dismissed. The narrow provisions in the draft Covenant which in part parallel Article 14 of the Declaration are as follows:

"Article 8

"1. Subject to any general law, consistent with the rights recognized in this covenant:

"(a) Everyone legally within the territory of a state shall, within that territory, have the right to (i) liberty of movement and (ii) freedom to choose his residence;

"(b) Everyone shall be free to leave any country including his own.

"2. (a) No one shall be subjected to arbitrary exile;

"(b) Subject to the preceding subparagraph, anyone shall be free to enter the country of which he is a national."

"Article 9

"No alien legally admitted to the territory of a state shall be expelled therefrom except on established legal grounds and according to procedure and safeguards which shall in all cases be provided by law." 20 This draft Covenant contains a "non-self-executing" clause." In fact any treaty containing even such limited provisions would necessarily have to contain a clause of non-self-execution (i. e., provisions of the treaty can become domestic law only when they are included in an enabling act of Congress) before the Senate would be at all likely to ratify it. Furthermore, the Senate, when giving its advice and consent, can declare by reservation that provisions in a treaty shall be non-self-executing even if no such explicit provision is made in the treaty itself.

A provision in the draft Covenant on Human Rights relating to freedom of speech and press has been pictured as an incursion into American liberties under the Constitution and it has been stated that such rights would thus become subject to "grave limitations and even suspensions". Mr. Holman cites paragraph 3 of article 14 of the draft covenant whereunder the right to freedom of speech and the press may be subjected to limitations as are provided by law and are necessary for the protection of national security, public order, safety, health, or morals, etc. From this he concludes that "any administration in power could provide by law (contrary to the first provision of the Bill of Rights) such restriction or abridgment of freedom of speech or of press as it asserted necessary. Such an analysis seems to ignore several vital factors in the situation. First, the limitations which are contained in the draft covenant are permissive and not mandatory; the provisions for free speech and press represent a minimum and not a maximum of rights to be guaranteed by the contracting parties. Furthermore, it is necessary to read this article of the covenant in conjunction with two other articles. Article 1 (2) says that the covenant is to be non-self-executing, and Article 18 (2) says that nothing in the covenant can be “interpreted as limiting or derogating from any of the rights and freedoms which may be guaranteed under the laws of any contracting state." All of this, plus the necessity of senatorial advice and consent, would seem to deprive the pictured fears of any substance. The Covenant on Human Rights, if and when it is completed, and if and when it is ratified by the United States, will bring about no limitations on freedom of speech and press in this country. The object of the covenant

19 Loc. cit., note 4, supra, p. A 2932.

20 See note 8, supra.

Article I (2) of the proposed covenant states that the obligation of the parties under the covenant is to take such steps as necessary, legislative or otherwise, to give effect to the provisions of the covenant, where such provisions are not already provided for by existing legislation or other measures.

22 Loc. cit., note 4, supra, p. A 2934.

is to guarantee certain minimum rights for all people everywhere. In regard to any particular right, in countries where such a right is already fully guaranteed by law or by constitutional provision, the provisions in the covenant cannot have the effect of weakening such right.

Having painted "a broad picture of what is going on in the international field", Mr. Holman proceeds to ask and answer five questions on constitutional law. The first four of these show how a treaty can nullify, respectively, provisions of a State constitution, a State statute, the decision of a State supreme court, and existing Federal legislation on the same subject. The first three (i. e., supersession of State constitutions, laws, and court decisions) are, I believe, indispensable in any effective form of federal government. It is possible that Mr. Holman and the other proponents of the constitutional amendment do not, in actuality, like a federal form of government. They are advocates of decentralization. The proponents of the amendment probably do not consciously think of their proposal in terms of federation or confederation. However, the proposed amendment in various of its forms might put us a long way back down the road toward confederation. Before we take this step we should take a long hard look at the experiences of our constituent states under the Articles of Confederation. Constant and vivid reminders of the troubles arising out of the weakness of that national structure led the framers of the Constitution to substitute a federation for a confederation.

As to the fourth axiom (i. e., supersession of Federal legislation by treaties), since both Federal laws and treaties are the "supreme law of the land", it is only logical that the latter in time should, as they do, prevail. It is firmly established that Congress may pass legislation which will in turn supersede a treaty,23 though from an international standpoint it would not relieve the United States of any of its obligations under the treaty.

The fifth question is whether a treaty can affect or amend the United States Constitution. Mr. Holman admits that there is a disagreement among lawyers as to the proper interpretation of Missouri v. Holland (252 U. S. 416 (1920)). The disagreement concerns the breadth of the holding. There is general agreement at least that the Court held that Congress has the constitutional authority to pass legislation in execution of a treaty, whereas it might not have such authority in the absence of a treaty. This is tantamount to saying that a treaty, which itself does not contravene any provision of the Constitution, may affect the division of functions between the Federal and State Government." It is inaccurate, however, to refer to this as "amending the Constitution," as the power to accomplish this result was expressly and necessarily placed in the Constitution (arts. II and VI) from the beginning.

24

The disagreement is over the question of whether this is as far as the Court went, or whether it went so far as to say that there is no limit to the treaty power, and in particular that treaties are not subject to constitutional limitations and can, in affect, amend the Constitution. Mr. Holman says that the "logical application" of this case would be that a treaty can amend the Constitution. Having assumed his interpretation to be the correct one, he projects at some length a number of dire consequences that might flow from such an application. On the other side the following brief points may be made. Missouri v. Holland is now 32 years old; its "logical application," as envisaged by Mr. Holman, has so far not come to life. In fact, since the decision in Missouri v. Holland the United States Supreme Court twice has reaffimed the long-established doctrine that the treaty-making power must be exercised in subordination to the applicable provisions of the Constitution.25 Even if a back-door "amendment" of the Constitution by a treaty were a legal possibility, it is highly unlikely that two-thirds of the Senators would conspire with the President to reach this result. Another prerequisite for such an “amendment” would be that the treaty, as negotiated with the other states, was of a self-evecuting nature. Yet another requirement

Whitney v. Robertson, 124 U. S. 190; Cook v. U. S., 288 U. S. 102.

34 In this connection one must never lose sight of the fact that two-thirds of the Senators must desire to enlarge Federal powers at the expense of State powers before any such result can be achieved through exercise of the treaty power. The Senate can, and normally will, refuse to give its advice and consent to the ratification of a treaty which would permit broad incursions into the prerogatives of the States. It is extremely unlikely that the Senate would give its advice and consent to a human-rights covenant which did not contain a "Federal-State" clause *** and it is equally unlikely that the Executive would submit such a treaty to the Senate for its advice and consent.

De Geofroy v. Biggs, 133 U. S. 258, at 267 (1889); reaffirmed in Asakuru v. Seattle, 265 U. S. 332, at 341 (1924), and U. S. v. Curtiss-Wright Export Corp., 299 U. S. 304 at 320 (1936).

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