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TREATIES VERSUS THE CONSTITUTION

By

ROGER LEA MACBRIDE

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THE CAXTON PRINTERS, LTD. CALDWELL, IDAHO

1956

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The roar of battle in the press on the subject of the Bricker Amendment -"Perdition if Passed," "Doom if Defeated"- left the author bewildered. There were many words but little careful analysis. The absence of an easily available treatment of the whole subject of amending the Constitution so as to limit the treaty-making power of the Executive led Mr. MacBride to prepare his own. Here, under the title TREATIES VERSUS THE CONSTITUTION, is a book intended to spell out what the controversy is about. Mr. MacBride first considers selected treaty obligations the United States has assumed, or may assume, which contravene the American Constitution. Finding that there is indeed a basis for concern, he has taken up the question of whether the constitutional provision that all treaties are to be regarded as "the supreme law of the land" means that they will be enforced regardless of violation of the Constitution itself. The story begins in summer-heated Philadelphia in 1787 when the Constitutional Convention met. What did the delegates understand the treaty clause to mean ? The author continues his study with a resume of the half dozen or so "treaty law" cases which have reached the Supreme Court since that time, clarifying the changing opinions of the justices. The real meaning of the so-called "wild goose" case is explored - dispassionately and the book concludes with an explanation of the chief contenders among the many competing amendments to curb the treaty power, including the purpose and effect of the famous "which" clause. This is a volume for laymen and lawyers alike. It was written with the interests of bo!h in mind: the body of the text is lucid and straightforward while there are copious footnotes for the person who wants to pursue the subject further.

First Printing. May, 1955

Second Printing. February, 1956

COPYRIGHT 1955 BY THE .CAXTON PRINTERS. LTD. CALDWELL. IDAHO

Library of Congress Catalogue Card No.55-6752

Printed and bound in the United States of America by The CAXTON PRINTERS. Ltd.

Caldwell. Idaho 81718

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TABLE OF CONTENTS Page INTRODUCTION 4 Chapter One "THE PROBLEM" 6 Chapter Two "THE FEDERAL CONVENTION" 10 Chapter Three "THE CASES" 19 Chapter Four "OPINIONS" 32 Chapter Five " AMENDING THE CONSTITUTION" 40 APPENDIX 46 In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is

distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref.http://www.law.c

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ornell.edu/uscode/17/107.shtml]

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INTRODUCTION

Public argument over the question of amending the Constitution to prevent abuse of the treaty power rose to a crescendo in early 1954 when the Senate was actively considering several proposed amendments. Four years of study by a committee of the American Bar Association and two by the Senate's Judiciary Committee had led to an abundance of suggested changes. Among these were the so-called Bricker, Administration, and George Amendments. Temporary subsidence of the debate has followed the Senate's rejection of the last proposed amendment by the narrowest possible vote: sixty for and thirty-one against it. The sponsoring cause of the proposals was the fear that a Trojan horse1 clause stands in the Constitution that Americans may someday discover that the citadel of their liberty has been invaded without their knowledge. That Trojan horse is said to stand upon two legs: Article II and VI. Article II provides that the President of the United States "shall have power by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur....” Article VI provides: "This Constitution and the laws of the United States which shall be made in pursuance thereof and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." One is immediately struck by the three classifications of Article VI: (1) the Constitution. ..shall be the supreme law; (2) laws in pursuance thereof. ..shall be the supreme law; and (3) treaties. ..under the authority of the United States shall be the supreme law. On the face of it, it would seem that a treaty need not be in pursuance of the Constitution to become the supreme law of the land. What, then, is meant by the "supreme law of the land ?" Does the article say or imply that any treaty or implementing act is on the same footing as a provision of the Federal Constitution and, consequently, can overrule the Constitution ? If so, the treaty power is capable of taking property for public use without paying compensation, may deny an American citizen a trial by jury in criminal trials and in suits at common law, may grant legislative functions to the Executive, and may enable Congress to legislate in areas forbidden it by the Constitution. The thought that the treaty power is indeed omnipotent is not new. As far back as 1788 the first North Carolina convention called to ratify the Constitution recommended an amendment to the end that "no treaty should be valid which was contradictory to the Constitution of the United States."2 Distrust of the very wide scope of the treaty power was early sired by the fear that only a very small number of venal men ( two thirds of a quorum of the Senate) need join with the President to "dismember the empire"3-- and this fear has continued down to the present time. It is the purpose of this work to analyze the legal basis of that fear. Is the treaty power limited by the Constitution? The answer can be found only through a painstaking study of the meaning of the constitutional provisions involved, which in turn means delving into the records of the Constitutional Convention, reviewing the significant Supreme Court pronounce- ments, and reporting informed opinion.

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The effect on the Constitution of executive agreements as treaty substitutes will be dealt with where appropriate. Most of the work on this monograph was done in my final year at Harvard Law School. The bulk of it was submitted as a thesis to Professor Arthur E. Sutherland, Jr. To him I owe a special debt of gratitude: his willingness to inconvenience himself for my benefit and his valuable criticisms were a very great aid. Manuscript criticisms by Frank Holman, former president of the American Bar Association, and Alfred Schweppe, chairman of the Bar Association's Committee on Peace and Law Through United Nations, relayed to me by the publisher, proved absolutely invaluable. I must also express my appreciation for the assistance rendered by Louis M. Scher, whose work scarcely needs recognition here.

R.L.M. August 23, 1954 1. The allusion to the treaty clause as a "Trojan horse" originated with Henry St. George Tucker, "Limitations on the Treaty-Making Power," Little, Brown, and Co., Boston, 1915, page 339. 2 Samuel Crandall, "Treaties: Their Making p.nd Enforcement," Second Edition, John Byrne & Co., Washington, D.C., 1916, p. 63. The first convention dissolved without taking final action, and the second convention did not submit the treaty amendment to the Congress when it ratified the Constitution. 3 See the remarks of George Mason at the Virginia ratifying convention in 1788, 3 Elliot's Debates 499ff, 509; J. B. Lippincott Company (Second edition), Philadelphia, 1901.

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C H A P T E R O N E: T H E P R O B L E M Before I enter on an analysis of the legal status of treaties vis-a-vis the Constitution, it is appropriate to consider briefly the reasons which make such a study worth while. First, is the United States already a party to any treaties which may have the effect of repealing some portion of the Constitution ?

PRESIDENT BARS WAR INVOLVEMENT WITHOUT CONGRESS Washington, March 10-President Eisenhower promised today not to involve the United States in war without a declaration of war by Congress.1 REMARKS OF SECRETARY DULLES AT NEWS CONFERENCE Washington, March 16- Q. Mr. Secretary, if I may go back to one point of yours, you said that in Europe the President had the same authority under the NATO and Rio treaties to retaliate [as] if the United States was attacked. Well, last Wednesday he seemed to give a pledge that he would not use that because he said that there would be no involvement in war without Congressional approval. A. But if the Senate has given approval in advance, that is a different matter. [The Secretary made it clear that he believed the treaties did constitute "consent in advance."] 2

DULLES SAYS GOAL OF DEFENSE PLAN IS TO WARN SOVIET Washington, March 19-Mr. Dulles declined [before the Senate Foreign Relations Committee] to give any promise that President Eisenhower would consult with Congress before hitting back at any aggression against one of this country's associates. He declared that the "all for one and one for all" pledges exchanged among the United States and its European allies in the North Atlantic Treaty meant that the President might have to put in a counterattack in his own discretion and without waiting for Congress if one of the allies were assaulted. "If time permits, Congress, of course, should share the responsibility," he added.3

It is perfectly clear that if the United States is attacked, the President has constitutional authority as Commander in Chief of the armed forces to retaliate. It is equally clear, I think, that if the United States is not directly attacked, only Congress may declare war; Article I, Section 8, of the Constitution says "The Congress shall have power. ..To declare war. ..." The theory upon which the Executive Department seems to be operating, as evidenced by the quotations above, is that a treaty empowers the President to commit the country to war without Congressional declaration even though the United States is not directly attacked. A treaty does not proceed from Congress, but from the Senate alone. Consequently, even if the treaty can be construed as giving advance consent, it is not Congressional consent, and no Congressional delegation of power can be hypothecated.

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It follows that the Executive Department believes that a treaty under these circumstances entitles the President to ignore the constitutional mandate that Congress shall declare war; in other words, Secretary Dulles' assumption must be that the NATO treaty can override the Constitution. Another treaty which may contravene the United States Constitution is the Warsaw Convention, ratified in 1934.4 That multipartite international treaty undertakes to regulate and limit rights of recovery against international air carriers. In the debate in the Senate last January , Senator Butler posed this hypothetical case: Two men take off from San Francisco, one bound for New York and the other for London. The plane crashes on take-off. The man holding the ticket for New York may recover damages to the extent that a jury finds he is entitled to them; the man whose destination was London is limited by the Warsaw Convention to a maximum of $8,300. Senator Kefauver having admitted that this was a correct interpretation of the treaty, Senator Butler continued: "In my opinion, it shows conclusively that we have already, by treaty, cut across the right of the American people to a full jury trial in the event of accident or death in a case such as that stated."5 Again, the representative of the Christian Science Church at the 1953 hearings contended that certain regulations adopted by the United Nations World Health Organization (of which the United States is a member) violate the First Amendment to the Constitution.6 Those regulations are effective within a reasonable length of time after adoption by WHO, and are designed to prevent the spread of disease from one country to another; the Christian Science Monitor objects particularly to compulsory vaccination for international travelers as against the tenets of the Christian Science faith.7 The United Nations Charter, a treaty which the United States has ratified, purports to give in Articles 55 and 56 present power to the signatory states to legislate in the whole social, economic, and cultural fields. If treaties can confer supra-constitutional authority on Congress, there can be no questioning in the courts on a constitutional basis of legislation to promote "universal respect for, and observance of, human rights and fundamental freedoms ( civil, political, economic, social, and cultural) for all without distinctions as to race, sex, language, or religion."8 Clearly power to enact legislation in this broad area is incompatible with the notion of a limited government; if, indeed, treaties can override the Constitution we have an omnipotent government unchecked by any of the protections for life, liberty, and property found in the American charter. Second, are there any treaties in prospect which may have the effect of overriding the Constitution? Perhaps the concern stems largely from a feeling that the Senate, confronted with a literal "avalanche"9 of treaties, conventions, and multipartite compacts from organizations like the International Labor Organization and the United Nations, is simply incapable of studying the provisions of each with sufficient care to make an accurate assessment of their meaning. At one of the Senate Judiciary subcommittee hearings, for example, Senator Dirksen spoke of the total ignorance of some of his colleagues on so important a docuIment as the recent Japanese treaty; one of them offered the observation that Senators must take some things "on faith."10 This situation, combined with the doubt of the ultimate effect of treaty provisions, resulted in the attaching of a reservation to the Bogota treaty (ratified in 1950) : "None of its provisions shall be construed as enlarging the powers of the Federal Government of the United

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States or limiting the powers of the several States. ..."11 Why? Because some Senators thought certain clauses of the treaty might be construed as self~executing, or, if not, as at least obligatory on the Congress. Those provisions included: ARTICLE 29. Work is a right and a social duty. ..and it is to be performed under conditions that insure life, health, and a decent standard of living. ... ARTICLE 30. The member States agree to promote. ..the right to education on the following bases: (a) elementary education shall be compulsory, and, when provided by the State, shall be without cost. (b) Higher education shall be available to all, without distinction as to race. ..sex. ..or social condition.12

It does not need to be pointed out that the gravest constitutional questions would be raised if the Congress attempted to implement these provisions. One of the treaties now before a Senate committee which raises questions of constitutionality is the Genocide treaty. Among its provisions is one making it a federal criminal offense to cause "mental harm" to a member of a minority .13 In itself that provision is constitutionally questionable, both because of the vague definition and because the federal government probably is prevented by the general provisions of Article I and the Ninth and Tenth Amendments from creating such a crime. But, further, one can envisage the possibility of an American charged with violation of the treaty or implementing act being tried before the proposed International Criminal Court, which may not provide a jury.14 In that event, two questions may be raised: can an American be tried abroad for an act in violation of a treaty? (the Constitution, Article III, Section 2, provides that the judicial power of the United States extends to cases arising under treaties) ; and can an American be denied his right to a jury trial for an offense committed in the United States (contrary to the Sixth Amendment)?15 The United Nations has been considering for a number of years a proposed "Covenant on Human Rights," designed to increase the measure of freedom enjoyed by people in most of the countries of the world. Unfortunately the document, now in near-final form, represents a severe watering-down of the civil liberty of an American citizen. Articles 14-16, for example, provide for freedom of opinion, of expression, of association, and of peaceable assembly - insofar as this freedom is "conformable to law," consonant with national security, and does not upset public order! 16 Some concern has been manifested that, by adopting the covenant, the United States may empower itself to disregard the Bill of Rights.17 The Committee on Peace and Law Through United Nations of the American Bar Association has said "Certain it is that every dictator will and can readily approve the definitions of free speech and a free press in the covenant."18 I think it is not idle, in view of the foregoing evidence, to investigate the law on the subject of treaties and the Constitution. Whether by oversight or design treaties already exist which threaten to overrule the Constitution, and the same may be expected in the future, regardless of the fate of the particularly glaring examples of prospective treaty enactments which I have mentioned.19 1 New York Times, March 11,1954, page 1.

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2 Id., March 17,1954, page 6. 3 Id., March 20, 1954, page 1. 4 "Convention for the Unification of Certain Rights Relating to International Transportation by Air," signed at Warsaw on October 12, 1929, 49 Stat., Part 2, page 3,000. 5 Congressional Record, January 29, 1954 (Vol. 100, No.17), p. 971, unbound edition. See also Report of Standing Committee on Peace and Law Through United Nations, AHA, Feb. 1, 1952, p. 16. 6. Hearings before a Subcommittee on the Judiciary, United States Senate, Eighty-Third Congress, First Session, on Two Proposed Amendments to the Constitution Relating to Treaties and Executive Agreements (February-April 1953). Statement of James Watt, pp.291, 298. 7. Article in the Monitor of September 26, 1953, reproduced in Id., p. 294ff. 8. See Senate Report No. 412, 83rd Congress, First Session (1953), p. 10. Four justices of the Supreme Court have indicated that they viewed Article 56 of the UN Charter as self-executing. Oyama v. California, 332 U.S. 633 (1948) 9 Hearings, supra, note 6, p. 717: Senator Dirksen's remarks. 10 Id. at 728. 11 The Congressional Record, January 28, 1954 (Vol. 100, No.16), unbound edition, p. 900. There is doubt as to whether a reservation to a treaty can be effective. Hearings, supra, note 6, p. 5; Report of the Committee on Peace and Law Through United Nations, 76 Reports of the A.B.A. 225, 228. 12 The Congressional Record, January 28, 1954 (Vol. 100, No.16), p. 900. Senator McCarran commented, "If the reservation is riot effective as a limitation, then it must be obligatory upon Congress. ..to implement this treaty." 13 Holman, Frank E., "Treaty Law-Making: Blank Check for Writing a New Constitution," 36 American Bar Association Journal 707, 788 (September,1950). 14 See, generally, the two articles: "An International Criminal Court: The Case for its Adoption," by John J. Parker, and "An International Criminal Court: The Case Against its Adoption." by George A. Finch, in 38 A.B.A. Journal 641, 644 (August, 1952). The 1953 version of the Draft Statute for an International Criminal Court calls for a jury trial only where the treaty of the ratifying state requires it. UN Bulletin,Sept. 5, 1953. 15 Hearings, supra, note 6, pp. 1157, 1159. It may be that the final determination of Constitutional questions under such a treaty will lie in the International Court rather than in the United States Supreme Court. The International Court of Justice has already ruled, in con- nection with complaints that Hungary had violated its 1947 peace treaty by depriving Cardinal Mindszenty of certain rights guaranteed therein, that: “The interpretation of the terms of a treaty for this purpose could not be considered as a question essentially within the domestic jurisdiction of a state. It is a question of international law which by its very nature lies within the competence of the Court." IlCJ Rep. 1950, p. 65; American Journal of International Law 1950, Vol. 44, p. 745-as cited by Prof. Quincy Wright in Hearings, supra, p. 677. 16 Report of the Special Committee for Peace and Law Through United Nations, 75 Reports of the American Bar Association 286, 302. 17 Prof. Chafee, however, argues that any law restricting human rights would have to surmount two obstacles: the covenant and the Bill of Rights, not the lesser of the two only. Chafee, Zechariah, Jr.: Federal and State Powers Under the UN Covenant on Human Rights, 1951 Wisc. L. R. 389, 455. 18 75 Reports of the A.B.A. 305. 19 Other treaties proposed in recent years which are considered dangerous in this regard are mentioned in Sutherland, Arthur E., Jr.:"Restricting the Treaty Power." 65 Harv. L. R. 1305, 1325 (1952).

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C H A P T E R T W O: THE FEDERAL CONVENTION

The Constitution of the United States contains five provisions relating to treaties : ARTICLE II, SEC. 2: [The President] shall have power by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur. ... ARTICLE III, SEC. 2: The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. ... ARTICLE VI: This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. ARTICLE I, SEC. 10: No State shall enter into any treaty, alliance, or confederation. ... ARTICLE I, SEC. 10: No State shall, without the consent of Congress. ..enter into any agreement or compact with another State, or with a foreign power. ... The pattern of these provisions is clear. It was the intent of the Federal Convention -"unanimously"- to create a nation in which, generally speaking, the central government was to be supreme in the areas of power marked out for it.1 Apart from questions of structure, the extent of the jurisdiction of the new government produced the sharpest debates.2 The Con- stitution clearly manifests that it was the sense of the convention that insofar as foreign affairs were concerned, the national government was to have the sole voice. Just how much say that voice was to have in the states was the subject of conflicting views. And Article VI, the key to the extent of federal treaty power, was the result of no little thought and discussion. On the twenty-ninth of May, 1787, Edmund Randolph, the governor of Virginia, presented to the convention a set of resolutions designed to form a focus for consideration of the form of the new government.3 The sixth of these was as follows: " Resolved, That. ..the National Legislature ought to be empowered. ..to negative all laws by the several states contravening, in the opinion of the National Legislature, the Articles of Union."4 Two days later the convention, acting as a committee of the whole, tentatively approved of the section, with the addition, at Benjamin Franklin's suggestion, of the clause ". ..or any treaty subsisting under the authority of the Union."5 The convention reconsidered the sixth resolution of June 8, when Pinckney introduced and spoke for an extremist substitute which would have permitted the national legislature to negative all state laws which it considered "improper ."6 Madison also supported this plan, which would, of course, have reduced the states to county status. One of the points made for the resolution was that it would ensure that the states would not violate treaties made by the nation, as they had under the Articles of Confederation.7 The motion was defeated, seven states to three.8

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A week later William Paterson, of New Jersey, presented the convention with a plan for a federal government which he meant as an alternative to the Randolph proposals.9 Its sixth clause was : Resolved, That all acts of the United States in Congress, made by virtue of and in pursuance of the powers hereby. ..vested in them, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, so far forth as those acts or treaties shall relate to the said States or their citizens. ...10 The concluding clauses of the resolution stated that state judiciaries were bound, and that the President might compel obedience if it were refused-substituting, as James Wilson pointed out, coercion for a negative.11 Four days thereafter Madison undertook an extensive examination of the totality of Paterson's proposals. He subjected it to several tests, and found it inadequate. The first of these tests was : Will it prevent the violation of the law of nations and of treaties which, if not prevented, must involve us in the calamities of foreign wars ? ...It ought. ..to be effectually pro- vided, that no part of the nation shall have it in its power to bring [a rupture with other powers] on the whole. ...[The proposition] leaves the will of the States as uncontrolled as ever} 12 By this I think Madison meant to point out that the constitutions of the various states were not declared to be subordinate to a national treaty in the event of a conflict, even though the "laws" of the state were to be. It was to a great degree on this basis that the states had been refusing to give relief to British creditors under the treaty of peace with Great Britain,13 which had led to a certain tenseness between England and the United States much upon the minds of the delegates. This and other objections caused the convention to regard the Randolph plan as preferable to Paterson's, and the former was, by a vote of seven to three, scheduled for detailed debate in the future.14 But by July 17 the delegates had cooled toward the idea of Congressional "negative" of state laws. Though Madison insisted that it was necessary,15 Morris thought the proposal "would disgust all the States,"16 and Sherman pointed out that while the operative principle was to be national supremacy, an unnegatived state law would still be valid.17 The convention turned down the plan, reversing its former approval by a vote of seven to three.18 Thereupon Luther Martin, of Maryland, a lawyer who later argued against ratification of the Constitution in his home state, put forward this resolution, the immediate parent of the eventual Article VI :

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That the Legislative Acts of the United States made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the Judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding.19 This resolution was agreed to without dissent, and the convention proceeded to another topic of discussion.20 Much of this resolution, it will be seen, was derived from the Paterson proposal to which Madison was so resolutely opposed. The phrase "supreme law of the respective states" Martin inferentially made clear in the following year. At that time he wrote a newspaper article explaining some of the reasons for his distrust of the Constitution. In it he explained that his resolution was designed to leave supreme the constitution, and in particular, the bill of rights, of each state in the event of conflict with a treaty; it was to be merely the "laws" of the state which would fall. The final draft of Article VI, he explained, subordinated the state constitutions.21 Evidently, then, the second half of his resolution was intended to define the phrase "supreme law of the respective states" ; the phrase had no greater meaning than the spelling out in the later clause. When the Committee of Detail reported out on August 6 a draft constitution embodying the results of the discussions, Martin's wording was substantially unchanged, except for the addition of the word "Constitutions" to the state body of law which was to fall if in conflict with national statutes and treaties.22 No explanation was offered, but it is probably fair to as- sume that the committee intended to achieve the object of the earlier Randolph resolution, which apparently had been disapproved on July 17 only because a national "negative" was an inappropriate means to the end of national supremacy. When John Rutledge, a colleague of Pinckney's from South Carolina, moved on August 23 to amend the draft to read "This Constitution, and the laws of the United States. ..and all the treaties. ..shall be the supreme law of the several States. .."23 it was agreed to without discussion or debate. By so doing the convention approved a clause which differentiated between three classes of national legal mandates, but placed them all over state constitutions and laws. Only in that sense was the word "law" to stand for a category which included them all. This interpretation is confirmed by the action of Gouverneur Morris a few minutes later. He moved to strike the phrase "enforce treaties" from the clause, in another part of the draft, "The legislature of the United States shall have power. ..to call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions,"24 on the ground that it was superfluous, since "treaties were to be 'laws.' "25 On August 25 the convention made another change in the draft. After a phrase "all treaties made" were inserted the words "or which shall be made" ( under the authority of the United States), with the purpose of obviating "all doubt concerning the force of treaties pre-existing, by making the words, 'all treaties made,' to refer to them, as the words inserted would refer to future treaties."26

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The convention did not return to the subject again. On September 8 the whole Constitution was submitted to a committee of five to "revise the style of, and arrange, the articles agreed to by the House."27 On the twelfth the Constitution was reported out, containing the present version of Article VI-"supreme law of the land" having been substituted for "supreme law of the several States." That committee did not intend a substantive change, nor was it empowered to make one.28 The meaning of the Sixth Article in the view of the convention is now clear. It was intended to subordinate the states to national acts of power. The description of the Constitution and of treaties as "the supreme law of the land" ensured that both would be applied as rules of law, rather than be regarded as executory or aspiratory.29 It ensured that they would be enforced in the states as well as by the federal courts.30 The phrase is probably fully defined by the second half of the Sixth Article. No ranking of the three categories of federal law was made in the Sixth Article, or intended to be made, except, possibly, insofar as the description of acts of Congress which were to be supreme as those "pursuant" to the Constitution indicated that those which were not would be void. That treaties are to be the supreme law of the land if "under the authority of the United States" is attributable to the fact that various treaties made by the United States acting under the Articles of Confederation could not be described as "made in pursuance" of the Constitution.31 The framers thought it necessary to enforce these treaties (especially the one of peace with Great Britain) .The possibility that an unconstitutional treaty might be made does not seem to have occurred to the members of the convention ;32 in 1787, after all, treaties related to war and peace and boundary lines and the rights of foreign nationals, not to the governmental structure of the treaty-making nation and the details of conduct of its citizens within its borders. In sum, Article VI neither defines nor implies the standing as against the Constitution of treaties not made "pursuant" to it, even though it may leave open the possibility that such treaties are binding upon the states until repealed or voided by the national government. We are left, then, with the negative conclusion, from the history of Article VI, that the Constitution did not affirmatively state that treaties are to be considered as on a level with the charter itself. There is no limitation in terms upon the scope of the treaty power, although there is upon the scope of the laws which Congress may enact. This was because, in the words of Madison at the Virginia ratifying convention: The object of treaties is the regulation of intercourse with foreign nations and is external. I do not think it possible to enumerate all the cases in which such external regulations would be necessary. Would it be right to define all the cases in which Congress could exercise this authority? The definition might, and probably would, be defective. They might be restrained, by such a definition, from exercising the authority where it could be essential to the interest and safety of the community. It is most safe, therefore, to leave it to be exercised as contingencies may arise.33 At the same time, however, Madison made clear :

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I do not conceive that [the treaty] power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power.34 (Italics added.) Is there then an implied limitation upon the scope of the treaty power? Most of those who spoke on the subject during the period of ratification, and during the initial decades of the nineteenth century, thought there were limits to its exercises, but there were those who thought otherwise. John C. Calhoun, sometime Vice-President of the United States, made a detailed analysis : Although the treaty-making power is exclusively vested and without enumeration or specification, in the Government of the United States, it is, nevertheless, subject to several important limitations. It is, in the first place, strictly limited to questions inter alias; that is, to questions between us and foreign powers which require negotiation to adjust them. But to extend it beyond these, be the pretext what it may, would be to extend it beyond the allotted sphere, and thus a palpable violation of the Constitution. It is, in the next place, limited by all the provisions of the Constitution which inhibit certain acts from being done by the Government, or any of its departments; of which description there are many. It is also limited by such provisions of the constitution as direct certain acts to be done in a particular way, and which prohibit the contrary. ...It can enter into no stipulation calculated to change the character of the Government; or to do that which can only be done by the Constitution-making power; or which is inconsistent with the na;ture and structure of the Government or the objects for which it was formed.35 Supreme Court Justice Story was of a similar opinion: ...though the power is thus general and unrestricted, it is not to be so construed as to destroy the fundamental laws of the state. A power given by the Constitution cannot be construed to authorize a destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it; and cannot supersede or interfere with any other of its fundamental provisions. Each is equally obligatory, and of paramount authority within its scope; and no one embraces aright to annihilate any other. A treaty to change the organization of the Government, or to annihilate its sovereignty, to overturn its republican form, or to deprive it of its constitutional powers, would be void; because it would destroy, what it was designed merely to fulfill, the will of the people.36

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Hamilton expressed himself more briefly, and perhaps thought that a treaty could expand constitutional powers to some extent. A treaty cannot be made which alters the Constitution of the country, or which infringes any express exceptions to the power of the Constitution of the United States. But it is difficult to assign any other bounds to the power.37 Patrick Henry, in the debates at the Virginia ratifying convention, insisted with his famous vigor and clarity of expression that there were no limits upon the power: ". ..if I could see the same checks in that paper which I see in the British government, I would consent to it."38 In reply at that same convention George Nicholas asserted: They can, by this [Sixth Article], make no treaty which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers. The treaties they make must be under the authority of the United States, to be within their province. It is sufficiently secured, because it declares that, in pursuance of the powers given, they shall be the supreme law of the land, notwithstanding any thing in the constitution or laws of the particular states.39 In his reading of the "in pursuance" clause Nicholas was evidently mistaken. But he does suggest that the phrase "under the authority of the United States" means more than the mere formal acts of ratification, converse to the intimation by Holmes in Missouri v. Holland.40 Countering Nicholas, again at the Virginia convention, was George Mason, a member of the Federal Convention : The President and Senate can make any treaty whatsoever..We wish not to refuse, but to guard, this power, as it is done in England. ...We wish an express and explicit declaration, in that paper, that the power which can make treaties cannot, without the consent of the national Parliament -the national legislature- dismember the empire.41 He suggested that a three-fourths vote in each branch be required, and that it be exercised only in cases of the most urgent necessity. Chancellor Kent, in his Commentaries, was of the belief that the treaty power was unlimited The department of the government that is intrusted by the Constitution with the treaty making power is competent to bind the national faith in its discretion, for the power to make treaties of peace must be co-extensive with all the exigencies of the Nation, and necessarily involves in it that portion of the national sovereignty which has the exclusive direction of diplomatic negotiations and contracts with foreign powers. All treaties made by that power become of absolute efficacy, because they are the

17

supreme law of the land. There can be no doubt that the power competent to bind the nation by treaty may alienate the public domain and property by treaty.42 If the Chancellor was basing his view upon the Sixth Article, as seems to be the case, in the light of the earlier analysis he was in error . The final word must be given to Thomas Jefferson, who concludes his remarks in typically Jeffersonian fashion. To what subject this [treaty] power extends, has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. 1. It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity res inter alias [sic] acta. 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of those the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. 4. And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others.43 The constitutional ambiguity on the standing of treaties vis-a-vis constitutional clauses was responsible for this variety of opinion. Inasmuch as the records of the convention itself leave no more than hints as to the intentions of the Founding Fathers, it cannot be asserted with certainty that one view or the other or a middle ground is the "true" construction. At the same time, the temper of the times and the general intent of the authors of the Constitution to limit the national government raises a strong presumption, in my mind at least, that most of the convention members would instantly have agreed to a description such as that of Jefferson as an accurate portrayal of the implied limitations upon a power not limited in terms. 1. Corwin, Edward S.: "National Supremacy: Treaty Powers vs. State Power," Henry Holt and Company, New York, 1913, p. 33. 2. Farrand, Max: "The Framing of the Constitution of the United States"; New Haven, Yale University Press, Tenth Printing, 1939; p. 73. 3. Madison, "Journal of the Federal Convention," ed. by E. H. Scott; Albert, Scott & Co., Chicago, 1893; p. 59. 4. Id. at 62. 5. Id. at 84. 6. Id. at 131. It should be noted here that earlier, on the same day that Randolph presented his resolutions, Charles Pinckney of South Carolina submitted a set of his own. One gathers it was late in the day, and the house entered upon no discussion of them. His sixth provision was strikingly like that in the eventual Constitution :

" All acts made by the Legislature of the U .S. pursuant to this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the land, and all judges shail be bound to consider them as such in their decisions." (Id. at 69)

Research indicates that the likelihood of Pinckney's being the author of the phrase "supreme law of the land," and hence one whose comments would carry particular weight, is not great. James Madison much later stated that he included the Pinckney proposals in his journal from a copy handed him by Pinckney some time after May 29; and he considered it likely that much of the phraseology was changed by Pinckney as the debates in the convention showed that his draft could be thereby improved (Farrand, Max: "The Records of the Federal Convention," Yale University Press, New Haven, 1911; vol. Ill, pp. 479-480; 504ff.). Whether the sixth resolution was altered is unclear (pp. 510-11, by implication).

18

Max Farrand, who compiled the reco..ds of the convention, asserted that the Pinckney plan was not met with great approval when presented, was filed in committee, and was never the subject of debate. (Farrand, "The Framing of the Constitution of the United States," p. 72.) 7 Madison, op. cit. supra note 3, at 131. 8. Id. at 136. 9. Id. at 163. 10. Id. at 166. 11. Id. at 171. 12. Id. at 189-90. 13. See the discussion in the next chapter of Ware v. Hylton. For a state court determination, see Dulan1/- v. Wells, 3 H. & McH. (Maryland, 1795) 20; and particularly Luther Martin's argument to the court. 14. Madison, op. cit. BUpra, note 3, p. lS6. 15. Id. at 363-4. 16. Id. at 364. 17. Ibid. 18. Ibid. 19. Id. at 364-5. 20. Id. at 365. 21. III Farrand, "The Records of the Federal Convention," 286-7. 22 Madison, op. cit. supra note 3, at 455. 23. Id. at 593. 24. Id. at 454 for the clause. 25. Id. at 593-94. Similarly, on September 7 James Wilson justified an attempt to include the House of Representatives in the treatymaking process thus: "As treaties. ..are to have the force of laws, they ought to have the sanction of laws also." Id. at 680; the motion was defeated after Sherman pointed out that the desirability of secrecy made unwise any reference of treaties to the whole legislature. 26. Id. at 610. 27. Id. at 691. 28. Letter to Jared Sparks from Madison, quoted in III Farrand, "The Records of the Federal Convention," 499. See also Mullen, James, "The Supreme Law of the Land," 39 Va. L. R. 729, 736 (1953) . 29. Farrand, "The Framing of the Constitution of the United States," p.209. 30. Article 111, Section 2, extends the judicial power of the United States to cases arising under the Constitution and under treaties. 31. Tucker, H. St. G., "Limitations on the Treaty-Making Power," Little, Brown, and Co., Boston, 1915; p. 10 (quoting Rawle) ; Mullen, op. cit. supra note 27 at 738-9; Madison, op. cit. supra note 3 at 610. Randolph's remarks on introducing his resolutions are also significant in this regard: Id. at 60. 32. It will be noted that the treaty with Great Britain was enforced in violation of the Fifth Amendment in 1796 (see next chapter) in my opinion. To the argument that the convention members ought to have foreseen this possibility in the case of a pre-existing treaty, it can be said, very simply, that the Constitution contained no due process clause in 1787. 33 III Elliot's Debates 514. 34 Ibid.

19

35. As quoted in Tucker, op. cit. supra note 31, at 4-5. Clay's opinion follows this statement closely; Id. at 30. 36. Id. at 10-11. 37. Id. at 19. 38 III Elliot's Debates 503. 39. Id. at 507. 40. 252 U.S. 416, 433. 41. III Elliot's Debates 508. 42. As quoted in Corwin, op. cit. supra note 1, p. 96. (Original italics.) 43. Jefferson, Thomas: " A Manual of Parliamentary Practice," Clark & Maynard, New York, 1873; p. 110. A letter from Alfred J. Schweppe, chairman of the American Bar Association's Committee on Peace and Law Through United Nations, had this to say with reference to Jefferson's Manual: " As I have pointed out elsewhere this book was published by Jefferson in 1801, the year he took presidential office, ten years after the first ten amendments were adopted in 1791. It went through six editions in his lifetime and many more afterwards and had a wide circulation and following among public men and scholars. It was in the handbooks used by the House and Senate. It was printed verbatim session after session and as late as 1865. I have no doubt that the views of Chief Justice Taney and others were tremendously influenced by this book."

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C H A P T E R T H R E E: T H E C A S E S

The Supreme Court of the United States has had few occasions on which to express itself by a direct holding on the effect of a duly ratified treaty upon the provisions of the Constitution. Most of its comments have been by way of dicta, as we shall see. The cases are readily divided into three chronological periods, with perhaps a little overlapping: the post-Revolutionary period, the nineteenth century, and the years following the first World War . At this point it is advisable to note, tangentially, that the way in which the Sixth Article applies to a treaty depends on the character of the instrument. Since the early case of Foster v. Neilson the Supreme Court has recognized two types of treaties-those which are "self-executing," and those which are not. Chief Justice Marshall described the latter type in these words: ...when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, de- partment; and the legislature must execute the contract before it can become a rule for the court.l If the courts, therefore, interpret a treaty as a promise on the part of the United States to do an act, an implementing statute doing the act must be passed by Congress before the Court will permit the subject matter of the treaty to be affected. If, on the other hand, the treaty is thought to be as absolute in its terms as an ordinary statute, it will be enforced as "the supreme law of the land." Either the treaty itself, then, or the implementing act will be enforced by the courts under the mandate of Article VI, and the implementing act will be tested as to constitutionality by treaty rather than ordinary statutory standards.2 It will also be noted that we are here dealing with the domestic effects of a treaty, not the international obligations incurred by the United States. A declaration that a treaty provision is void domestically might or might not have the effect of causing the United States to default on an international commitment. It is outside the scope of this paper to deal with that problem; it will be sufficient to note here that there are divergent views as to whether a nation is excused from performance of its treaty commitments for constitutional reasons.3

1. POST-REVOLUTIONARY PERIOD In 1796 the Court decided the famous British creditors' case, Ware v. Hylton.4 A great deal of interest attended the arguments of the parties, and each of the members of the Court took occasion to state how deeply he was affected by the momentous issues therein presented.5 The facts were these: in 1774, a year or two prior to the Revolutionary War , a Virginia firm called Daniel Hylton and Company gave a promissory note for about $15,000 to Farrel and Jones, British subjects. In 1780, while the war was still being fought, Hylton paid

21

roughly $3,000 of this debt to the Virginia treasury, pursuant to an act which provided that such payment would constitute a discharge to the American debtor.6 In 1783 the final treaty of peace with England was ratified by the Congress of the United States, acting under the Articles of Confederation. One of its clauses was this: "It is agreed that creditors, on either side, shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts, heretofore contracted.7 After the adoption of the Constitution an agent of the British creditors, Ware, brought an action of debt for the sum owing him. Hylton set up the discharge pursuant to Virginia law in bar, and the Circuit Court held for him. The Supreme Court justices delivered their opinions seriatim. The reasoning of Justice Chase, the first, was as follows: ( 1) Virginia had the right to pass the discharge law; (2) the treaty of peace did not by itself revive the debt, which was confiscated or extinguished, as between the debtor and creditor; (3) the constitution or laws of any state, contrary to treaty, are "prostrated"8 before the treaty under the United States Constitution; ( 4) the Court must overrule the plea in bar since it is contrary to the treaty, which intended to, annul the law of Virginia. "That Congress had the power to sacrifice the right and interests of private citizens to secure the safety or prosperity of the public, I have no doubt."9 He concluded, however, that an unspecified someone (probably Virginia, which received the benefits) ought to repay Hylton, for justice appears to demand it, and it is a principle "recognized" by the Constitution. Justices Cushing and Paterson followed this reasoning, while Wilson argued that the Virginia law was impotent to destroy the debt in the first place. Justice Iredell, who had sat on the Circuit Court which had decided for Hylton, read his opinion from that level, which amounted to a dissent from the majority position. He contended that the treaty merely called for "repeal" of the impediment (i.e. the Virginia law) by the state legislature, but acts done thereunder had been and remained lawful, with the result that Hylton was no longer the debtor.10 The particular phraseology of the Sixth Article having been designed especially for the purpose of retroactively validating the treaty of peace as the law of the states, ll it cannot be surprising that the Court reached this result. The treaty was indeed applied as the supreme law of the land, and conflicting state laws were submerged. The question of whether the United States, by the treaty, was depriving Hylton of property without due process of law, contrary to the Fifth Amendment to the Constitution, was not openly discussed although the problem seemed to weigh heavily on the minds of the Court's members.12 Hylton's right not to pay had been confirmed to him under what was even in the Court's view valid law at the time; it is difficult to see how a lawfully vested right can be divested by the sovereign without compensation and still fall within traditional standards of due process of law. Hylton's money ( and those moneys of all the other Americans similarly situated whose rights were determined by this case) was taken, in effect, for the purpose of pre serving a treaty which, if violated, might well have had most serious effects.13 It was a hard case; the Court was di vided between strong domestic desires and urgent national policy; the effect was, in my opinion, to hold in fact a treaty could overcome the due process clause. There is a plausible argument the other way, however. It has been said that since the doctrine of judicial review had not yet been established, 14 the Court felt itself obligated to enforce the treaty regardless of the Constitution, leaving it to the United States to make

22

suitable reparation to the injured debtors, thus "constitutionalizing" an unconstitutional act.15 In 1806 another British creditor case reached the Supreme Court. In Hopkirk v. Bell16 it was held that where a statute of limitations was pleaded in bar to the debt, the treaty of 1783 eliminated the time prior to that treaty from computation of the years necessary to complete the bar. The question as to whether the later years were to be counted was left open. This decision, in view of the legal rationale that a statute of limitations relates merely to the remedy, not the right which remains unextinguished, does not appear to be counter to the Fifth Amendment. Fairfax's Devisee v. Hunter's Lessee,17 which reached the Supreme Court in 1813, came close to deciding the effect of another treaty with Britain upon rights vested under state law, but, owing to the statutory and common-law determinations reached by the Court, the problem of interest to us was not reached.18

2. THE NINETEENTH CENTURY No cases appeared in the Supreme Court during this period which made necessary a direct determination of a treaty's effect where it conflicted with the Constitution. Nonetheless the century was rich in cases which permitted the justices to offer dicta on the subject. Prevost v. GreneauxI9 was a case that came close to the problem, and certainly made clear the decision the Court would have made at that time had the question been put to it unequivocably. One Prevost had died in 1848, and his heirs, French citizens, appeared to claim his Louisiana property in 1854. Throughout this time a tax was laid according to Louisiana law on all property within the state inherited by one not a citizen of any state or territory of the United States. Meanwhile, in 1853, the United States ratified a treaty with France which gave Frenchmen the right to inherit property without taxes different from those of citizens, if the state laws permitted it. The state court held that Louisiana law did indeed implement the treaty, and thus excuse French citizens from the alien tax, but that the right to the taxes had accrued before the treaty was ratified, and the Frenchman must pay. The Supreme Court, per Taney, C. J., held that the treaty was intended to apply only to deaths after the treaty went into effect. He added : "Certainly a treaty, subsequently made by the United States with France could not divest rights of property already vested in the state, even if the words of the treaty had imported such an intention."20 He said this even though the plaintiff, in his argument, had cited the Ware case to the Court as one which divested vested rights. Even though the defendant here was a state rather than an individual, the dictum shows a strong tendency toward protection of vested rights as a duty under the Constitution. Brown v. Duchesne, 21 contained in the same volume of reports, indicates that Taney's opinions on this subject were very definite. Brown's invention was lawfully patented in the United States, but when a French vessel arrived in harbor using his device (which every- one freely used in France) , he was held to be unable to recover on the ground that the patent laws did not extend to embrace improvements on foreign ships patented here, but lawfully used in the view of the foreign country. After thus construing the statute, Taney pointed out the consequences of an opposite holding.

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He envisioned a treaty between the United States and another country providing for mutual free access to the ports. Then the foreign master ...would be met with a. ..demand the amount of which ...depended upon the will of a private individual. " And it will be remembered that the demand, if well founded in the patent laws, could not be controlled or put aside by the treaty. For, by the laws of the United States the rights of a party under a patent are his private property; and by the Constitution of the United States private property cannot be taken for public use without just compensation. And in the case I have stated, the Government would be unable to carry into effect its treaty stipulation without the consent of the patentee, unless it resorted to its right of eminent domain, and went through the tedious and expensive process of condemning so much of the right of property of the patentee as related to foreign vessels, and paying him such a compensation therefore as should be awarded to him by the proper tribunal.22 From these two cases I conclude that the Court as of that time would have overruled Ware v. Hylton insofar as it related to the divestment of vested rights by treaty. See also the cases cited below.23 It should be noted here that several cases during the century pointed out that treaties and statutes were on the same level as far as conflicting effects were concerned: A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.24 ...so far as the provisions in that [taxing statute] may be found to be in conflict with any treaty with a foreign nation, they must prevail in all the judicial courts of this country.25 During this period there were two cases which made it clear that there were certain aspects of foreign relations which a court would not judge. Though the cases involved no constitutional questions, they are important in determining what implied limitations exist on the breadth of subject matter with which treaties and executive agreements are competent to deal. In Doe v. Braden26 the Duke of Alagon claimed to be the owner of certain Florida lands, pursuant to a grant from the king of Spain. Shortly after the king allegedly granted these lands to the duke he ceded the Floridas to the United States, and in the treaty of cession annulled his conveyance to the duke. The duke claimed that the king did not have the power to do so. The Court refused to determine the merits of that question, holding that it is not a judicial but a political duty to make such determinations. In Oetjen v.Central Leather Co.,27 a case involving United States recognition of the Mexican government, it was said : The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative-the "political"-Departments of the Government, and the propriety of what may be done in the exercise of this political

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power is not subject to judicial inquiry or decision.28 The doctrine of these cases could, if extended, be so applied as to render the courts unable to determine questions of treaty constitutionality. The result would be, for treaties, the reverse of the doctrine of judicial review for statutes-and this despite the equality of the two noted above. The Supreme Court might well find that national foreign policy considerations vest the final and exclusive jurisdiction to determine the constitutionality of treaties in the President and the Senate. Justice Field's celebrated dictum in the case of Geofroy v. Riggs29 probably sums up accurately the nineteenth-century judicial view of the treaty power : That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised, or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulation between the two countries. ...The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.30

The tests Field proposes that a treaty must pass are, then: (1) Is it a proper subject of negotiation with a foreign country?31 (2) Does it do away with the general restraints imposed by the Constitution upon the federal government? (3) Does it authorize what the Constitution prohibits? ( 4) Does it alter the character of the federal government, or that of a state? and, finally ( 5) does it cede state territory without state consent?

3. THE YEARS AFTER WORLD WAR I The first case involving the question as to whether the Congress could extend its power by the device of a treaty calling for such an extension was decided by the Supreme Court in the affirmative in 1920. Missouri v. Holland32 is deservedly one of the most renowned treaty-power cases, for it ushered in anew era of treaty jurisprudence. In 1913 the Congress enacted a law designed to provide protection for certain of the migratory

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birds on the continent. In the following years four state and lower federal courts held the act unconstitutional,33 on the ground that it invaded the reserved power of the states. The Supreme Court had, years before, declared that the "property" in wild game was in the states.34 Not to be balked of its prey, the federal government entered into a treaty with Great Britain in 1916 which promised that it would take steps to protect the migratory birds; an enabling act was passed by Congress (substantially the same act as in 1913) two years later. Missouri thereupon brought an action in the nature of a bill in equity to restrain United States Game Warden Holland from enforcing the provisions of the ancillary act. Oliver Wendell Holmes delivered the opinion of the Court. He first pointed out that if the treaty were valid the statute would be.35 He then said the determinations in the lower courts concerning the 1913 act were not important to this determination, whether right or wrong, as they could not be a test of the treaty power . To the test proposed by Missouri, that a treaty cannot be valid if it infringes the Constitution and that a treaty cannot do in derogation of the powers reserved to the states what an unaided act of Congress cannot do, Holmes replied : Acts of Congress are the supreme law of the land, only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts required to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but. they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well-being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found.36

And The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved.37

He finished by calling the title of the states to the birds "a slender reed" on which to lean (but did not distinguish the Geer case); here, he said, is a national interest of "very nearly the first magnitude," and the treaty must be upheld.38 The meaning of the case is simple: the Tenth Amendment can be overridden by a treaty.39 The implications may be much broader. The dicta in the above passages suggest no tests of

26

limitation on the power and, in fact, imply that if the national need is great enough the treaty power can do virtually anything. In view of the Court's assertion that control of wild game is a national interest of "nearly the first magnitude," it is difficult to conceive of an objective the Court would think unimportant.40 The Yale Law J ournal commented : Uniformity of legislation by withdrawal from state legislative control of such subjects as marriage and divorce, labor legislation, the ownership and inheritance of property. and all matters affecting aliens would be possible by exertion of the necessary treaty power.41 We turn now to two cases which do not involve treaties, but which cast a great deal of light on the position of the Supreme Court when a private person seeks judicial review of an act analogous to a treaty. The first involved a Congressional statute which gave the President power to put into effect its provisions barring the sale of arms by Americans to belligerents in the Chaco dispute. The Curtiss- Wright Corporation appealed from criminal penalties, alleging an unconstitutional delegation of power. The Court said that, assuming this statute would be unconstitutional if confined to domestic affairs, it is not so since it related to external matters.42 Justice Slitherland asserted that the United States derives its powers in the international field, not from the Constitution, but from the attributes of sovereignty of all nations : ...the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the government as necessary concomitants of nationality. 43 The power to make executive agreements, he says on the same page, is so derived since it is not bestowed by the Constitution. In the instant case, the presidential authority plus the legislative authority "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."44 These dicta tend to give the treaty power an extremely broad footing; if the delegated treaty power proves inadequate on a constitutional basis, it may prove adequate on the "attribute of nationality" basis. 45 The case also gives juridical footing to the executive agreement, a substitute for treaty making not mentioned in the Constitution. The Curtiss-Wright case dealt a severe blow to the theory that the United States government is one of strictly limited, delegated powers, which must be exercised according to the terms of the grant. An undefined, but possibly vast, area of international powers (which always have domestic reflections) appears to have been opened up by Justice Sutherland. The second case was United States v. Pink. 46 It involved an executive agreement made by the President with Russia pursuant to recognition of that government in 1933, and that agreement's effect on certain moneys which had been set aside for certain dispositions under New York state law.

27

The facts were briefly these: in 1919 the Soviet government nationalized all Russian insurance companies, Iwherever situated, and cancelled all of their debts and stockholders' interests. The New York branch of the First Russian Insurance Company continued to do busi- ness until 1925; sometime during that period foreign creditors secured attachments under New York law. Between 1925 and 1931 the company was liquidated, all domestic creditors were paid, and the remaining funds were placed in the custody of the Superintendent of Insurance of the state to pay the foreign (attaching) creditors, and restore the balance to the First Insurance company's board of directors (presumably to repay the stockholders) .Before more than a start had been made on payments the United States, as an incident to its recognition of Russia, received an assignment of Soviet claims to property in America, including, the Supreme Court held, Russian claims to this property.47 The United States brought suit for the entire amount of money remaining in the superintendent's hands (about a million dollars) and, after adverse decisions in the New York courts based on an earlier case, won in the United States Supreme Court. The argument was of course made that the rights of the foreign creditors had vested by virtue of the New York decrees in 1931, and could not be divested by the United States without violation of the Fifth Amendment.48 The Court conceded that aliens are entitled to the protection of that amendment, but said "the Federal Government is not barred by the Fifth Amendment from securing for itself and our nationals priority against such creditors."49 The Court meant that the policy behind acceptance of the assignment was to pay Americans who held claims against the Russian government arising from other transactions.50 Inasmuch as the claims of the foreign creditors had not arisen from the New York branch of the First Russian Insurance Company, it was evidently in the Court's view a contest between these two groups. The Court said that the authority to recognize a foreign government inheres in the President; that that authority includes the power to determine the policy behind recognition, and that that policy is not to be questioned in the courts as it is a political, not a judicial question.51 It was the judgment of the political department that full recognition of the Soviet Government required the settlement of all outstanding problems, including the claims of our nationals. ...We would usurp the executive function if we held that that decision was not final and conclusive in the courts.52 The Court therefore held that the recognition retroactively validated the Russian claim, thus divesting the rights of the foreign creditors.53 It added: "If the priority had been accorded American claims by treaty with Russia, there would be no doubt of its validity ."54 It is possible to say that the case merely redefines the amount of protection the Constitution gives to non-citizens, but the tenor of the Court's discussion does not indicate any such intention. The more probably correct view is the obvious one: that the foreign credtors; were simply deprived, by a presidential policy determination, of the due process of law admittedly due them. Of this case Dr. Philip Jessup has said: "From the point of view of our constitutional law , the decision may mark one of the most far-reaching inroads upon the protection it was supposed the Fifth Amendment accorded to private property ."55

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The hesitancy on the part of the judiciary to pass judgment upon matters involving American foreign policy, as shown in the Curtiss- Wright and Pink 56 cases, continued in the following years. Chicago and Southern Air Lines v. Waterman Steamship 57 is a further manifestation of this tendency. There the question was whether the courts would review an order of the Civil Aeronautics Board denying a carrier permission to supply overseas air transportation where presidential approval of that order was required by the Civil Aero- nautics Act, and was given. The Court found that a literal reading of the act gave it power to review, 58 but refused to do so, saying ...the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. ...They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry .59 The position of the Supreme Court appears to have undergone a profound change during the last thirty-five years.60 Admonitory words prescribing limitations upon the power of treaties virtually disappeared; instead the Court has spoken even more expansively of the power of the federal government to affect internal law by this means. In two of the cases I have reviewed the Court in point of fact (as distinguished from the statements in the opinions) allowed the Constitution to be overridden. The Court also placed some types of executive agreements upon the legal footing afforded treaties. The extent to which acts in the field of foreign policy, whether in treaty form or otherwise, are to be reviewed by the courts is not clear. It is clear, though, that the direction is away from review. The grounds stated are that the acts are "political" in nature, and committed by the Constitution to the other departments. I believe that this reasoning amounts to a repudiation of the Marbury v. Madison doctrine where applied to constitutional questions-the Court is only saying that the final determination of the constitutionality of the act involved is left to the actor In sum, the dicta of the nineteenth century can no longer be relied upon as a guide to the question of whether the Court considers treaties to be on the same plane as the Constitution. In the "hard" case of United States v. Pink, involving American policy toward a wartime ally, the Court repeated its holding in the "hard" case of Ware v. Hylton. It is my belief that the Court will never hold otherwise when presented with private rights on the one hand, and a strong national policy to which the United States has long been committed on the other. After all, the echoes of the criticisms of the Court during the years 1933-1937 have not yet fully died away. . 1. Foster v. Neilson, 2 Pet. 253,314 (1829). And see United States v. Rauscher, 119 U.S. 407,419 (1886). 2. Missouri v. Holland, 256 U.S. 416 (1920) . 3. Associate Supreme Court Justice Iredell was of the opinion that when a nation promises to do a thing by treaty "it is understood, that this promise is to be carried into execution, in the manner which the constitution of that nation prescribes." Warp v. Hylton, 3 Dall. 199, 272 (1796). In his view presumably a nation is altogether excused from failure to perform if performance is found to be constitutionally impossible. On the other hand the Draft Convention on the Law of Treaties provides: " Art. 23. Unless otherwise provided in the treaty itself, a

29

State cannot justify its failure to perform its obligations under a treaty. ..because of any special features of its governmental organization or its constitutional system." Supplement to the American Journal of International Law, Volume 29, number 4 (October, 1935) , page 662. According to the authors, the convention was prepared "with a view to setting forth what is deemed to be the existing law, in some instances the desirable law, with respect to [the problems arising in connection with treaties]." Id. at 671. 4. 3 Dal\. 199. 5. Cowles, W. B., "Treaties and Constitutional Law ," American Council on Public Affairs, Washington, 1941; p. 66. 6. This act was typical of those enacted in many states; their purpose was evidently to raise money for the war. 7. 3 Dall. 239. 8. Id. at 237. 9. Id. at 239. (Original italics.) 10. Id. at 278-80. He said on the latter page that if Congress thought this case to have been comprehended, it should have provided an indemnity. 11. Cf. the discussion in the last chapter. 12. See Chase's concluding remarks. Cushing, a majority justice, said "These considerations [that the state impliedly owed the debtor, and the debtor was at least morally bound to pay the British firm] will, in effect, exclude the idea of the power of eminent domain; and if they did not, yet there was sufficient authority to exercise it, and the greatest occasion that perhaps could ever happen." 3 Dall. 283. Iredell said (italics omitted) : "I cannot therefore bring myself to say, that the present Defendant having once lawfully paid the money, shall pay it over again." 3 Dall 280. He expressed the hope that Hylton would be repaid. 13. The British had threatened not to remove their troops from the western forts, for example, until the debts were paid. Cowles, op. cit., p. 84, footnote 105. 14. Marbury v. Madison, 1 Cranch 137 (1803) . 15. Cowles, op. cit. supra note 5, at 85. 16. 3 Cranch 453 (1806) . 17. 7 Cranch 603 (1813). 18. The situation in that case was briefly this: Lord Fairfax, an American citizen, died in 1781 owning certain property in the Northern Neck of Virginia. He devised it to Denny (Martin) Fairfax, the plaintiff, an English subject. In 1789 Virginia, which claimed to have escheated the land on the death of Lord Fairfax, or in the alternative to have confiscated the land from an enemy alien (Denny Fairfax) by virtue of an act of 1785 or earlier acts, conveyed the land to one Hunter, whose lessee was the defendant. The court held that none of the Virginia acts drawn in question had the effect of confiscating the land, although it admitted that Virginia could have done so at the time. It also held that the common law permitted an alien to take a defeasible title by devise, so that, until the time of the Jay treaty in 1794, the state might have divested the title by performing an inquest of office. Virginia had never gone through this formal procedure. Hence, until the treaty Denny Fairfax held good, though defeasible title. The grant to Hunter by Virginia in 1789 conveyed to him only the state's inchoate title. The court held finally that the treaty, which provided that British subjects should hold land in the United States thereafter according to the nature of the title they held therein, confirmed and protected the plaintiff's title thereafter. No further acts by Virginia could be effective in divesting that title, therefore. 7 Cranch 618-628. For an elaborate discussion of the case's background, see W. W. Crosskey, "Politics and the Constitution," University of Chicago Press, Chicago, 1953; Vol. 2, p. 785ff. 19. 19 How. 1 (1856) . 20. Id. at 7. 21. 19 How. 183 (1856) . 22. Id. at 197. 23. Holden v. Joy, 17 Wallace 211, 243 (1872) ; The Chinese Exclusion Case, 130 U.S. 581, 600 (1889) ; Downes v. Bidwell, 182 U.S. 244, 310-44, 312, 318, 370; The Cherokee Tobacco, 11 Wall. 616, 620 (1870) ; The License Cases, 5 How. 504, 614 (1847) ; and Holmes v. Jennison, 14 Pet. 540, 572 (1840) . 24. The Cherokee Tobacco, 11 Wall. 616, 621.

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25. The Head Money Cases, 112 U.S. 580, 597 (1884). See also on this general point: The Chinese Exclusion Case, 130 U.S. 581, 601-2 (1889) ; Carneal v. Banks, 10 Wheat. 181 (1825) ; Taylor v. Morton, 23 Fed. Cas. No. 13,799 (1855, Cir. Ct. in Dist. of Mass.) ; United Shoe Machinery Co. v. Duplessis Shoe Machinery Co., 155 Fed. 842, 845 (First Cir., 1907) . See also, for the power of Congress to enforce a treaty as "the law of the United States" in the states, Baldwin v. Franks, 120 U.S. 678, 683 (1887) ; Hauenstein v. Lynham, 100 U.S. 483 (1879); Clark v. Allen, 331 U.S. 503 (1947). See, for statement that treaties are to be liberally construed even when in conflict with state laws, Nielson, Administrator, v. Johnson, Treasurer, 27!1 U.S. 47 (]929). 26. 16 How. 635, 657 (1854) . 27. 246 U.S. 297 (1918); the case also held that de jure recognition retroactively validated the acts of the Mexican government. Latvian State Cargo and Passenger Steamship Line v. McGrath, 188 Fed. 2nd 1000 (1951), cert. denied 342 U.S. 816 (1951), held that nonrecogition of the legality of nationalization decrees in Latvia prevents the (nationalized) plaintiff steamship company from recovering in the courts of the United States. 28. 246 U.S. 302. 29. 133 U.S. 258 (1890). The case involved, as is apparent from the remarks quoted, the inheritance rights of an alien in the District of Columbia. The treaty permitted Frenchmen to "take" land where state laws permitted; this form of treaty was apparently common in those days. 30. 133 u.s. 266-7. And see Fuller, C. J., in Downes v. Bidwell, 182 U.S. 244,370 (1901). 31. The case of Holden v. Joy, 17 Wallace 211 (1872) may clarify what is meant by "proper subjects of negotiation." Considered in the context of the Constitution, the court said, ,'. ..it must be assumed that the framers of the Constitution intended that [the treaty power] should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty; if not inconsistent with the nature of our government and the relation between the States and the United States." 17 Wall. 243. (Italics added.) The use of the word "had" seems to suggest that the proper subjects of treaty-making are not to be extended in kind, but only in degree, beyond what was known in 1787. 32. 252 U.S. 416 (1920). The case of Hauenstein v. Lynham, 100 U.S. 483 (1879), had held that a Swiss heir was enabled by a treaty to collect the value of land held by Hauenstein in Virginia. The case is distinguishable from Missouri v. Holland on the ground that Virginia law enabled an alien to have such rights in property as a treaty allowed (at 485), and the Supreme Court's task was only one of treaty interpretation (at 485-88) .The regulation of the rights of aliens traditionally lay within the treaty power. The sixth Article was adopted with a view to the rights of aliens under the treaty of peace with Great Britain, and those rights were enforced in Ware v. Hylton. More recently, as is noted in the last chapter, the Supreme Court has stated that the power to regulate the rights of aliens rests as well upon Congressional power to naturalize and to control immigration. 33. U.S. v. Shauver, 214 Fed. 154 (D.C. Ark. 1914) ; U.S. v. McCullagh, 221 Fed. 288 (D.C. Kans. 1915) ; State v. Sawyer, 113 Me. 458, 94 Atl. 886; State v. McCullagh, 96 Kansas 786, 153 Pac. 557. 34. Geer v. Connecticut, 161 U.S. 519 (1896). 35. In which he may have been in error. The treaty called for the "parties to propose to their law-making bodies" the necessary measures (252 U.S. 431). It would seem that there is a distinction between a valid and an invalid way of carrying out a proper end (for example, the government may need property to carry on a war effort, but it may not simply grab it; just compensation must be paid) ; and if this be so, why could not the President have recommended the measures to the state legislatures as the proper law-making bodies, thus fulfilling the treaty? 36. 252 U.S. 433. 37. Id. at 433-34. By way of contrast to this cavalier treatment of the tenth amendment, note this holding in Kansas v. Colorado, 206 U.S. 46, 90 (1907), decided only thirteen years previous: "The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States [italics supplied] This Article X is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning." 38. 252 U.S. 434-435. 89. The tenth amendment reserves to the states and to the people the powers not delegated to the national government. It is a mistake to analyze this case as not violating the amendment because the treaty power is one of the powers delegated to the national government. The history of the adoption of the Bill of Rights makes very clear the intention that the national government should not exercise any of its powers in derogation thereof. It is obvious that the very reason for the tenth amendment was to prevent the national government from increasing its powers by the "bootstrap" method. What is really delegated to the United States is perhaps not so much a naked power as a power limited as to substance. It is probable, for example, that though Congress is delegated the power to regulate commerce between the states, it cannot utterly forbid any commerce.

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Similarly the treaty power cannot (without violating the tenth amendment) regulate the breakfast fare of New Yorkers. In short, it may be accurate to say that the powers granted the national government were frozen in kind, though certainly not in degree (as recent develop- ments in the field of regulation of commerce have evidenced) by the adoption of the first ten amendments. 40. Cf. United States v. Reid, 73 Fed. 2nd 153, 155 (1934) , where the court, citing Holland, says "It is doubtful if the courts have power to declare the plain terms of a treaty void. ..." Cf. United States v. Domestic Fuel Corp., 71 F 2nd 424, 430 (1934) ; Z. & F. etc. v. Hull, 114 F 2nd 464, 468 (D.C., 1940) , particularly footnote 13. 41. Comment, "Treaty-Making Power as Support for Federal Legislation," 29 Yale L. J. 445, 449. See also a contemporaneous article by the then Attorney General of the state of Washington, 11 Cal. L. R. 242. 42. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315. 43. Id. at 318. Edward Corwin's comment on this statement is interesting. Corwin, Editor, "The Constitution of the United States of America, Analysis and Interpretation," U.S. Gov't. Printing Office, Washington, D.C., 1953; pp. 419-420 : "Justice Sutherland's later assertion in the Curtiss-Wright case that the powers to 'declare and wage war, to conclude peace, to make treaties,' etc., belong to 'the Federal Government as the necessary concomitants of nationality' leaves even less room for the notion of a limited treatymaking power, as indeed appears from his further statement that 'as a member of the family of nations, the right and power of the United States. ..are equal to the right and power of the other members of the international family.' No doubt there are specific limitations in the Constitution in favor of private rights which 'go to the roots' of all power. But these do not include the reserved powers of the States; nor do they appear to limit the National Government in its choice of matters concerning which it may treat with other governments." 44. Id. at 320. 45. Frank Ober has said, in commenting upon this case, that if it is correct to say that the treaty power is not derived from the Constitution, then it is logical to say that it is not restrained by any of the express provisions therein, or any implied therefrom. Consequently, nothing is out of bounds logically, although the Supreme Court would probably not go that far. 36 A.B.A. Journal 715, 718-9. 46. 415 U.S. 203 (1942). 47. Id. at 221. 48. Id. at 226. The court expressed no opinion as to whether its decree here would apply to domestic creditors if they had existed. Id. at 227. Philip Jessup is almost certainly correct in pointing out, however, that the language of the case makes it most likely that the principles of law would be applied to local citizens in similar cases, despite the disclaimer. 36 Am. Journal of International Law 282, 286 (1942). 49. Id. at 228. 50. Id. at 227. 51. Id. at 229. 52. Id. at 230. 53. Id. at 233,234. 54. Id. at 228. The court necessarily also held: "A treaty is a 'Law of the Land' under the supremacy clause (Art. VI, Cl. 2) of the Constitution. Such international compacts and agreements as the Litvinov assignment have a similar dignity." Id. at 230. 55. 36 Am. Journal of International Law 282 (1942). 56. United States v. Belmont, 301 U.S. 324 (1937), very close to Pink on the facts and issues, formed a major precedent on this point. 57. 333 u.s. 103 (1948). 58. Id. at ll0. Of course the court reviews domestic orders of the CAB, so the question was whether the sole addition of the clause providing for Presidential approval caused a different result. 59. Id. at 111. For this proposition the court cited the Curtiss-Wright and Oetjen cases, together with a domestic case in which the court had refused to review a "political" question. 60. The dissent of Chief Justice Vinson and Associate Justices Reed and Minton in the 1952 Steel Seizure cases should be noted here because it has been interpreted as justifying the seizure on the ground that the President received authority by virtue of our treaty commitments to the UN. The majority in the case (343 U.S. 579) held, it will be recalled, that the President could not lawfully seize the mills because he was not authorized by the Constitution or laws of the United States to do so. The dissent pointed out that the United States had ratified the UN treaty, that the United States was in Korea at the request of the UN, that Congressional support for the Korean war had been manifested, that "our treaties represent not merely legal obligation" but also recognition

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of the principle that mutual security is the best security (p.669) , and that "the President has the duty to execute the foregoing legislative programs [Defense Production Act, military aid, etc.]. Their successful execution depends upon continued production of steel and stabilized prices for steel." (p. 672)

" Accordingly if the President has any power under the Constitution to meet a critical situation in the absence of express statutory authorization there is no basis whatever for criticizing the exercise of such power in this case." (p. 680)

The "power under the Constitution" which the dissenters found was that in Article two, section three: "he shall take care that the laws be faithfully executed." Evidently this power relates back to the execution of the Defense Production Act and the others mentioned. Though it may be a possible interpretation that the dissenters relied on the power's relation back to the UN treaty as a "law," broadly speaking, I do not think it a very likely one. Frank Holman pointed out in a letter that the significance of this dissent penned by Chief Justice Vinson lies in the fact that he was "influenced by 'treaty law' to the extent that he emphasized the importance and legal obligation of treaties and that the statutes which he discussed were in some way or another, directly or indirectly, an implementation of treaties. Hence, if you take out treaties and statutes based on treaties you have nothing left to sustain his support of the President's power to seize private property."

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C H A P T E R F O U R: O P I N I O N S

What are the constitutional limitations upon the exercise of the treaty power? It seems certain that the Tenth Amendment imposes none. Missouri v. Holland, discussed in the preceding chapter, serves as strong authority for that proposition. Professor Zechariah Chafee's analysis of that case reaches the conclusion that the powers delegated to the United States in the realm of foreign affairs are wider than in the domestic area, and that the Tenth Amendment is correspondingly shrunk greatly as a limitation upon the treaty power.1 Professor Edward S. Corwin, writing even before the Holland case, was of the conclusion that as the treaty power was delegated to the United States the Tenth Amendment has no application to its usage.2 It has become increasingly clear that there are few limitations imposed by "reverse implication" from the Constitution-i.e., that the delegation in one place of a certain power to one institution prevents the exercise of that power by another. When it was contended in 1794 that the passage of the Jay treaty bound the House of Representatives to appropriate the money necessary to implement it, the House made it clear that it did not go along-but it appropriated the money anyway.3 According to Corwin there is no doubt that a treaty can effect changes in customs duties without the approval of Congress, although the power is not exercised today.4 President Truman's committal of the United States to what Secretary Acheson admitted was a "war"5 in Korea was assertedly taken "under the aegis" of the United Nations,6 meaning, of course, that the Congressional power to declare war had been assumed by the President. And, as shown earlier in this work, Secretary Dulles now claims the same power for the Presidency under the NATO and Rio treaties. It has been thought by some that the very nature of the treaty power implies limitations. Nine years after Missouri v. Holland, Charles Evans Hughes, soon to be Chief Justice of the United States Supreme Court, suggested the possibility in this way: I think it is perfectly idle to consider that the Supreme Court would ever hold that any treaty made in a constitutional manner [i.e. the formal steps ?] in relation to the external concerns of the nation is beyond the power of the sovereignty of the United States or invalid under the Constitution of the United States where no express prohibition has been violated.7 But if we attempted to use the treaty-making 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 jurisdiction of the States, then I say again there might be ground for implying a limitation upon the treaty-making 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 treaty-making power .8 In other words, as Professor Chafee explains, the treaty power assertedly is limited to subject matter foreign to at least one of the contracting nations-to things such as boundaries, the rights of aliens, and usages on the high seas.9 Chafee does not subscribe to this doctrine, however, at least

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with respect to the proposed Covenant on Human Rights, which is exactly within the excluded area. He argues that a free state has an interest in having free neighbors, and that "infringements on human rights within a country are a potent cause of international hostility ," and so should be amenable to correction by the treaty power .10 Others discussing the covenant have granted some limitation of this kind-but assert that the covenant does not fall therewithin. The' tests suggested are: (1) "Is there the requisite association with the international relations of the United States?" (2) "The treaty-making power is to be exercised with constitutional bona fides."11 The first of these, of course, excludes nothing, and the second merely eliminates treaties which are no more than a colorable device to increase federal power-and doubtless the case would have to be flagrant. Though there are those who feel the use of the treaty power to accomplish objectives outside the sphere of "foreign" relations would be an abuse of the power and beyond the scope of the authority granted to the government as the agent of the people,12 the prevalent view among legal writers seems to be that It may reasonably be assumed that what are matters of international concern for determining the scope of the treaty power is in the last analysis a question, not of derivation from authoritarian doctrine, but of fact and of contemporary fact. The concern of the peoples of the world for human rights and the international character of such rights for the purposes of international law have already been sufficiently demonstrated.13 Whether the relationship of the United States federal government to the people of the United States is a "proper" subject of international negotiation-or whether there exists such a qualification as a "proper" subject-has not been judicially determined.14 It would appear that such a qualification is most unlikely to be imposed except in an extreme case, both because of the reluctance of the Supreme Court, hereinbefore mentioned, to review political determinations, and because of the acceptance of the "concomitant of nationality" theory of the treaty power advanced in the case of United States v. Curtiss-Wright. Finally, do the express provisions of the Consti tution, such as the prohibitions against illegal search and seizure, constitute a limitation ?15 Opinions fall into three categories: yes, no, and maybe. Let me sample a few of them. John Foster Dulles, currently Secretary of State for the United States of America, is unique in having occupied all three positions in less than two years. He began an address to a regional meeting of the American Bar Association in Louisville, Kentucky, in April, 1952, thus: [Treaties] are, indeed, more supreme than ordinary laws for congressional laws are invalid if they do not conform to the Constitution, whereas treaty law can override the Constitution. Treaties, for example, can take powers away. .. from the States and give them to the Federal Government or to some international body, and they can cut across the rights given the people by their constitutional Bill of Rights.16

Then, with reference to what was then Senate Joint Resolution 1, he said in September, 1953,

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Section one provides that any provision in a treaty which conflicts with the Constitution shall be of no force or effect. I believe that this states the law as it now is.17 But a few months earlier, in testifying before the Senate Subcommittee on the Judiciary, with reference to this same S.J .R. 1, he said : Does section 1 of the proposed constitutional amendment mean that the United States can never make a treaty which would outlaw war? Can we never agree, with other nations, to abridge the present unqualified right of Congress in relation to war? Surely this is no time for the United States to make itself unable to enter into treaties which would effectively ban the terrible specter of a war .18 Which, together with substantially converse statements on the same day ,19 puts him in the middle. Donald Richberg follows the Louisville speech; he says: The contention that the Constitution cannot be violated by an exercise of the treaty power can be answered. ..by the simple statement that it has been repeatedly violated.20 And he cites the Holland, Curtiss-Wright, and Pink cases to support his argument. If by the adverb "repeatedly" he meant to convey the impression that the Supreme Court has been pounding down constitutional provisions with the rhythm of a tom-tom, he exaggerates. But, as we have seen, there is substance to his assertion. Professor Arthur Sutherland, of the Harvard Law School, cites the case of President Coolidge and his Senate, who ...evidently thought a treaty could prevail over at least one amendment. In 1924 the United States entered into a treaty with Great Britain which allowed British ships to bring intoxicating liquor under seal into the waters of the United States although the Supreme Court of the United States had held during the preceding year that the Eighteenth Amendment prohibited such importation.21 The treaty was not successfully tested in court. Professor Sutherland suggests it might be argued that the treaty was valid because the purpose of the supremacy clause was to protect the lands and credits of British creditors, and this treaty was for a similarly "commercial" purpose. He also makes the other side of the argument-that a treaty curtailing civil rights would not be valid if in conflict with the Constitution because the supremacy clause was not intended to apply to such a treaty .22 It is perhaps difficult to square this argument with the speech of Madison in the Virginia ratifying convention, quoted earlier, wherein he pointed out that the treaty power was purposely left unqualified so as to leave latitude for any sort of unforseen contingency. If such a

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contingency could result in the deprivation of property rights, as in Ware v. Hylton, why not in the deprivation of civil rights? And in any case the conclusions I have reached with respect to the supremacy clause show that it was not intended to be the agency for determining the constitutional effect of treaties, but only a provision to insure that the states enforced federal treaties. Professor Zechariah Chafee, of Harvard, says that treaties cannot overcome the specific prohibitions of the Bill of Rights,23 but his reasons are less than convincing. He argues from the fact that treaties can be repealed by statute (citing the Chinese Exclusion Case) to the result that they cannot be "supreme law" since statutes are not.24 In the first place he assumes that one attribute controls the other-the thing to be proved. The question is whether the special constitutional treatment of treaties gives them this peculiar attribute-not whether the Constitution provides for another power which ~an abrogate the effects of that attribute. In the second place Chafee himself argues elsewhere in his article that treaties can increase the jurisdiction of Congress.25 Statutes clearly cannot perform this function. So the equation of the two for one purpose and their separation for another hardly adds strength to the former when it is to be proved thereby that the equation controls the critical attribute. Henry St. George Tucker was of the opinion that the treaty power was impotent to annul any of the Constitution's provisions because the supremacy of the Constitution declared in the Sixth Article simply forbids it.26 Events since the 1915 publication of his work indicate that the Supreme Court does not agree with .him. And again, the conclusion reached herein with reference to the supremacy clause does not permit it to be used as a support for his conclusion. Finally, there are those who find themselves unable to come to a certain conclusion. Judge Allen, of the Sixth Circuit, in a recent book quoted the passage from the Holland case stating that an "exigency of national well being" might call for a treaty-sponsored increase of Congressional power, and said: "This seems to hold that a treaty does not have to conform to the Constitution. The question should not be allowed to rise."27 She later suggested a consti tutional amendment to forestall any such possibility .28 Charles H. Butler, speaking at the same meeting as the one where Charles Evans Hughes had suggested the possibility of implied limitations, had said that he "quaered" whether he would go so far as to say that a treaty can override the Constitution.29 Vermont Hatch, a member of the American Bar Association's Peace and Law Committee, develops the thesis that the treaty-making power, since the Holland case, is unlimjted, except perhaps for specific constitutional prohibitions, not including the Tenth Amendment.30 In this he reflects the views of the Bar Association committee, which felt that the only effective answer, from a long-range viewpoint, to the abuse of the treaty power is an appropriate constitutional amendment which will permit the federal government to operate effectively through treaties in the traditional international field between governments, but at the same time prevent their misuse with reference to the rights and powers of the several states of the United States, and the rights, privileges and immunities of citizens of the United States.31 * * * * *

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The meaning of the words used in connection with the treaty power in the Constitution, as best they can be interpreted by a study of the intentions of its authors and by a review of contemporaneous opinion, is one thing. The meaning of those words as explained by the Supreme Court in recent years is quite another. I think this is what could have been said in 1919: Article VI of the Constitution in no way implies that treaties are to be valid even if they contravene constitutional provisions. The actual meaning of the article is rephrasable thus: “All three types of legal mandates of the federal government-this Constitution, Congres- sional acts not in conflict with it, and past or future treaties-shall not be disobeyed by the states; and state judges shall apply these legal mandates regardless of the state laws or constitution." The form in which the article is cast leaves it open to the interpretation that state judges are entitled to decide whether a statute of Congress conforms to the Constitution, but are not empowered to decide an asserted conflict between a treaty and the Constitution. This interpretation finds substantiation in the fear of many convention members that a single contumacious state might bring ruin upon the entire nation by angering a foreign power ; while no major disaster could result from a state's refusal to enforce a national law on asserted constitutional grounds. Article VI is then irrelevant to an inquiry as to the standing of treaties in conflict with the Constitution. Limits on the treaty power must be found elsewhere. Reason and history demand the imposition of limits. The power to make treaties is but one of the powers delegated by the Constitution to the federal government, and resting as it does in grant, it is on no higher footing than the other delegated powers. The provision of a procedure for amending the Constitution in the Fifth Article, carefully guarded to insure that the document will not be altered without the approval of the people as expressed in three fourths of the states, as well as of two thirds of each house of Congress, clearly should negative the idea that the Constitution can, in effect, be altered by the President and the votes of two thirds of a quorum of senators alone. It seems to me that the mere expression of the thought that the states' representatives in the convention created a government which could indefinitely strengthen itself or change its form, contrary to the written principles embodied in the creating instrument, refutes it. None of the authors of the Constitution who later pressed for its ratification ever implied that treaties could override the Constitution. Like Madison, they viewed the treaty power as limited. These arguments apply with redoubled force to the amendments, which must be taken as superior to any conflicting provision of the original document. It cannot be thought that the states which refused to ratify the Constitution unless a bill of rights were passed would have regarded this as satisfactory protection against the acts of both houses of Congress and the President, but not against the acts of one house and the President. In short, "The distinction between a government of limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed."32 There is no question but that the federal government is one of limited powers; there should be no question but that those limitations cannot be thrown aside by an act of a part of the government. That was 1919. I need not reiterate the impact upon such thinking of the Holland and later cases. The domestic legal status of an unconstitutional treaty provision lies somewhere

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between validity and doubt as to whether it is valid or not. No lawyer today could conscientiously advise a client to risk his liberty or his property on the ground that it is invalid because not in conformance with the Constitution. During the same years, the Curtiss-Wright, Pink, and Chicago and Southern Air Lines cases have manifested a tendency on the part of the Supreme Court to back away from reviewing foreign policy determinations of any kind. This reluctance must be distinguished from the Court's traditional, and probably quite justified, refusal to review political acts-i.e., the validity of acts of the government within the competence of the legislature or executive challenged as inappropriate. Those three cases in dicta and holding may herald a vast expansion of the concept of political acts, an expansion which may lead to a future holding "Whether or not the instant treaty conforms with the Constitution is immaterial, for we cannot review the political acts of the other departments." In Marbury v. Madison33 the Supreme Court decided that it had the power to declare statutes void. Chief Justice Marshall's argument was based on general principles rather than on specific constitutional provisions. He said that the people of the United States had created a government of limited powers, "and that those limits may not be mistaken, or forgotten, the constitution is written."34 Any act beyond those limits is void. And it would, he said, be an absurd result for the courts to make an act obligatory on the parties involved which is in theory void. It is therefore the duty of the judiciary to resolve conflicts in favor of the Constitution.35 For precisely the same reasons the Supreme Court should review treaties. For those reasons it has, heretofore, reviewed them. The recent cases cited may mean that it will not review them in the future, on the pretext that they are "political" acts. It is to be noted that this doctrine, if continued along the lines already more than hinted, is separate from the willingness of the Court to uphold treaties over the Fifth and Tenth Amendments. But it affects the private citizen in much the same way: the Court would not lift from him the burden of an unconstitutional treaty in either case. 1. " Amending the Constitution to Cripple Treaties," 12 La. L. R. 345. 2. Corwin, "National Supremacy: Treaty Power v. State Power," pp.19-20. See supra, chapter 3, note 39, for a contrary view. 3. Corwin, op. cit. supra note 2, p. 10. The House was probably right, but would the courts agree, even if they agreed to review the question? 4. Id. at 11. Article I, Section 8 of the Constitution provides "The Congress shall have power. ..to regulate commerce with foreign nations. ..." (italics supplied) 5. Testimony before the Combined Armed Services and Foreign Relations Committees of the U.S. Senate, June 7, 1951; as quoted in Hearings, supra, chapter 1, note 6, at 1177, footnote 1. 6. Acheson news conference, June 28, 1950; as quoted in Hearings, supra, chapter 1, note 6, p. 1179. Princeton's Professor Corwin says: "Today the vital issue in this area of Constitutional Law is whether the treaty-making power is competent to assume obligations for the United States in the discharge of which the President can, without violation of his oath to support the Constitution, involve the country in large scale military operations abroad without authorization by the war-decla~ing power, Congress to wit. Current military operations in Korea appear to assume an affirmative answer to this question." Edward Corwin, editor, "The Constitution of the United States of Ameri.ca, Analysis and Interpretation," U.S. Government Printing Office, WashIngton, D.C., 1953; pp. 419-420. 7. Proceedings of the American Society of International Law, 1929; published by the society in Washington, D.C.; p. 194. 8. Id. at 196. 9. Federal and State Powers Under the UN Covenant on Human Rights," 1951 Wisc. L. R. 389, 469.

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10. Id. at 470. He also advances other arguments, in my opinion even weaker. 11. Hyman, Jacob D. : "Constitutional Aspects of the Covenant," 14 Law and Contemporary Problems 451, 464 (Summer, 1949) . 12. See Ober, Frank B.: "The Treaty-Making and Amending Powers: Do They Protect Our Fundamental Rights ?", 36 American Bar Association Journal 715, 718 (September, 1950). See also Carl B. Rix, "Human Rights and International Law: Effect of the Covenant Under Our Constitution," 35 A.B.A. Journal 551 (July, 1949). See also remarks of Charles E. Hughes, Proceedings of the American Society of International Law, supra, note 7. 13. McDougal and Leighton: "The Rights of Man in the World Community: Constitutional Illusions versus Rational Action," 14 Law and Contemporary Problems 490, 518 (No.3, Summer 1949). 14. See the Report of the American Bar Association's Committee on Peace and Law Through United Nations, 76 Reports of the A.B.A. 225ff. 15. Parenthetically let me point out that there has been some disturbance over the thought that the first amendment, which states that "Congress shall make no law respecting an establishment of religion, ...', might not be a barrier to the exercise of the treaty power even though the other amendments were. The thought is, of course, that the Senate is not prohibited from making a treaty respecting an establishment of religion, etc. Both Professor Chafee and Philip Perlman (who was the government's counsel in the steel seizure case) have dealt very competently with this possibility. I will not repeat their arguments here, save to say that the gravamen is that the first amendment has been held to apply to the Federal Government generally despite its restrictive language, and there is no reason to suppose an illiberal interpretation would be made in the case of a treaty. Perlman: "On Amending the Treaty Power," 52 Col. L. R. 825, 846 (1952) ; Chafee, "Federal and State Powers Under the UN Covenant on Human Rights," 1951 Wisc. L. R. 389,440ff. Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123,135-6, 143,199-200 (1951). 16. As cited in Hearings, supra, chapter I, note 6, p. 862. 17. In the Department of State Bulletin, Vol. XXIX, No.741, September '7, 1953, pp. 307, 308. 18. Hearings. supra, chapter I, note 6, p. 826. 19. Id. at 895, 898, for example. 20. Richberg. Donald R.: "The Bricker Amendment and the Treaty Power..' 39 Va. L. R. 753 (1953). 21. Sutherland, Arthur E., Jr.: "Restricting the Treaty Power," 65 Harv. L. R. 1305, 1319-20 (1952). 22. Id. at 1318-1319. 23. Chafee: "Federal and State Powers," supra, note 9, at 436ff. 24. Id. at 433-4. 25. Id. at 429, for example. Chafee adduces as the clincher a dictum from United States v. Minnesota, 270 U.S. 181, 207-209 (1926), said to lay at rest the fears of those who read the Holland case as upholding a treaty over the Constitution. The dictum is weak at best, and was given by Justice Van Devanter, who dissented in the Holland case! 26. Tucker, op. cit. supra, chapter 2, note 31, at 78. 27. Allen, Florence E.: "The Treaty as an Instrument of Legislation," MacMillan Co., N.Y., 1952; p. 33. 28. Id. at 105. 29. Proceedings of the American Society of International Law, supra, note 7, at 180. 30. "The Treaty-Making Power: An Extraordinary Power Liable to Abuse," 39 A.B.A. Journal 809 (September, 1953). 31. Report of the Special Committee for Peace and Law Through United Nations, 76 Reports of the American Bar Association, 225,227 (1950). See also the previous and succeeding reports of this committee, 75 Reports of the A.B.A. 286 (1949) ; 77 Reports of the A.B.A. 244 (1951). See also the very helpful later reports of the Standing Committee on Peace and Law Through United Nations, dated February 1 and September 1,1952; February 1 and August 1, 1953; and March 1 and August 1, 1954. For other views on the subject, pro, con, and indifferent to the proposed S.J.R. 1, see the Hearings, supra, chapter 1, note 6. Only a tiny fraction of the fascinating content of that volume could be presented in this book. 32. Marshall in Marbury v. Madison, 1 Cranch 137,176 (1803). 33. 1 Cranch 137. 34. Id. at 176.

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35. Id. at 177. He thus answered the implied contention that Congress and the President should be the final arbiters of the constitutionality of their acts, instead of the courts.

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CHAPTER FIVE: AMENDING THE CONSTITUTION I think it essential that the Constitution be amended to establish with certainty the ascendancy of that document over any type of international agreement. What form should an amendment take ? Keeping in mind that the end sought is to preserve the rights of Americans, let us consider some of the possibilities. A provision of a treaty or other international agreement which conflicts with this Constitution shall not be of any force or effect.l This text simply states what should have been obvious all along-that no treaty can contravene the Constitution. The constitutional aspects of the decisions in the Ware and Pink cases should be cancelled. The statement of limitation should refute permanently the suggestion of Justice Sutherland in the Curtiss-Wright case that the power of the federal government over international affairs is derived from a source higher than the Constitution or extends further than that document. Executive agreements are classed with treaties insofar as their constitutional force is involved. Frank Holman2 and others are of the opinion that the wording of this text will not be adequate to reverse the decision in the Holland case. Justice Holmes's opinion in that case said that the treaty power, being a delegated power, could not be restricted by the Tenth Amendment, which reserves undelegated powers to the states. For reasons already brought forward I think that the case is faulty law, but law it is nonetheless. As a delegated power the exercise of the treaty power quite possibly would not, even after the adoption of this text, be restrained by the Tenth Amendment. The judicial power of the United States shall extend to all cases, in law or equity, in which such conflict exists, and shall make the final determination of the questions involved.3

Though it is probable that the bare fact of amendment on this matter would carry with it the implication that the courts are to interpret and apply the section, it is not certain in view of the recent tendency of the Supreme Court to expand the area of unreviewable "political" questions (and thus leave the ultimate determination of constitutionality to the actors) .In amending the Constitution it is best to leave no important matters to implication, to be decided by unknown courts in the future under unknown circumstances. Frank Holman has objected to a provision in the Administration Amendment calling for judicial review where a conflict is "claimed" to exist, on the ground that it will open to litigation treaties of a purely political character.4 I have phrased the above text as you see it as an example of one way to meet part of his objection: review is demanded only where conflict does exist. The judiciary is free to dismiss actions brought on the premise of conflict where none is found; but it is bound to find whether there is conflict and, if so, to determine the issues. Even

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so, undoubtedly some issues the courts have heretofore termed "political" and refused to consider will have to be adjudged. If an American finds his land in Mexico when the Rio Grande changes its path, in my opinion he is entitled to a court test of the constitutionality (though certainly not the wisdom) of the treaty which made the border that river, no matter what its course. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.5 The purpose of this, the famous "which" clause, is to correct the holding of the Holland case by measuring the extent of the delegation of power in the treaty clauses, so far as internal United States law is concerned, by the extent of power granted the Congress by the Constitution when it acts for domestic purposes. In other words, the second clause prevents treaties from intruding upon the states in any way in which ordinary acts of Congress may not intrude. The effect is to reverse Missouri v.Holland and prevent over-ruling of state law by treaty means. The treaty power would continue to extend to its traditional objects.6 While control over the deaths of migratory birds would return to the people and to the states, pursuant to the Tenth Amendment,7 Congress might still reach within state boundaries to control the affairs of aliens.8

The phrasing of this proposal makes all treaties non-self-executing. By adopting this rule the United States parts company with Cuba, Mexico, Liberia, and the Philippines-the only other nations in the world which may have internally self-executing treaties.9 This change is intended to carry out the spirit of the Constitution, which entrusts the legislative power to the Congress, not to the President and the Senate. Since treaty law is as much law when it impinges upon the individual as any other kind of law, it is fitting that the House of Representatives participate in its creation. Further, double scrutiny-once as a treaty and once as an implementing act-gives greater assurance of wisdom and unquestionably adds certainty by removing an ever-present legal question: is the treaty self-executing, or not? Consideration of objections to the upsetting of the rule of Missouri v.Holland will be postponed for a few pages.10

On the question of advising and consenting to the ratification of a treaty the vote shall be by yeas and nays, and the names of the persons voting for and against shall be entered on the Journal of the Senate,11 This provision is intended to make sure that the American people know who voted for what treaties in the Senate-an objective which could be achieved by an amendment to the Senate rules instead of by an addition to the United States Constitution. I am not in favor of including this clause in any amendment. If the body of the amendment is effective to protect American rights, this clause is unnecessary; if the rest of the amendment is inadequate, this clause will only serve to conceal the inadequacy. I see little point in writing into the Constitution a provision whose sole purpose is to enable the finger of scorn to be pointed with accuracy after the event. Senator John Bricker, of Ohio, carried on his tireless work to secure an adequate treaty-power amendment by introducing a new version on August 5, 1954.12 The text of this "New Bricker Amendment" may be found in the Appendix. In many ways it is the best

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text proposed thus far. The first section directly amends the supremacy clause of the Constitution and so makes it clear that treaties are on equal footing with statutes.18 The second section ends self-executing treaties and restores the traditional federal-state balance by reversing Missouri v. Holland This version has flaws, however. It fails to insist in clear language that the judiciary, rather than those who make and implement the treaty, shall determine cases of conflict. The third section, calling for a record vote in the Senate upon treaties, is frivolous in .view of the effectiveness of the first two; the names of the Senators are no more needed than in the case of an ordinary voice vote on a statute. Simpler and more certain in its effects is this version : SECTION 1. A provision of a treaty or other international agreement which conflicts with this Constitution, or which is not made in pursuance thereof, shall not be the supreme law of the land nor be of any force or effect. The judicial power of the United States shall extend to all cases, in law or equity, in which the defects enumerated in this article exist, and shall make the final determination of the questions involved. SECTION 2. A treaty or other international agreement shall become effective as internal law in the United States only through legislation valid in the absence of international agreement. This text 14 restores the status ante quo Holland and supplies those changes in treaty jurisprudence which fulfill the needs of our present-day republic. It should be the version adopted into the Constitution.15

The great bulk of the opposition to a treaty-law amendment has come from those who are unwilling to see the federal government shorn of any of its power. This opposition has concentrated particularly upon the attempt to nullify Missouri v.Holland; the phrase "which clause" (referring to the second section of the Judiciary Committee amendment) became almost a sneer word. Let us examine some of the objections put forward. The most important of these is the argument that under some circumstances the implementation of a treaty would have to be accomplished by the legislatures of the various states in order not to violate the second section of the version above. Though a treaty calling for such a method of implementation after ratification would be rare indeed, it is not impossible that under some circumstances this procedure would be necessary. The burden of the treaties does not affect the internal law of the United States at all, and so will not fall within the province of the amendment. Almost all of those which do affect internal law are capable of implementation by Congress under its general jurisdiction. It is clear that Congress has power to legislate in most of the areas with which treaties are concerned: war, peace, foreign commerce, tariffs, immigration, and the concerns of aliens within the country .16 State legislation to carry out a treaty would be necessary only in the rare instance of a trea ty beyond the federal legislative competence-dealing with a subject not traditionally one with which foreign affairs are concerned.17

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It is significant that the United States has negotiated at least three recent treaties which depend-whether necessarily or not-upon state laws for implementation. These were those with China in 1946, Italy in 1948, and Japan in 1953.18 Surely the traditional structure of the United States and the constitutional liberty of their citizens need not be jeopardized for the twice removed fear that an important treaty will be made requiring state acquiescence and that the states will not acquiesce ! Philip Perlman has contended that the position of the United States at the international bargaining table, will be significantly weakened by the "incomplete sovereignty" of the national government resulting from its inability to confirm and implement any conceivable treaty.19 The fallacy of this argument is evident to common sense (how did we manage to conduct national affairs before 1920?), and was summarily dealt with in a Canadian case (Canada's procedure for enforcement of treaty law internally depends in some cases upon the ratifications of the various provincial legislatures) : "In totality of legislative powers, Dominion and Provincial together, she [ Canada] is fully equipped. But the legislative powers remain distributed."20 Another objection advanced is that Congressional implementation of treaties will necessarily involve the House of Representatives; the House, they say, was not intended to participate in the making of treaties, and to add it now to their implementation merely adds delay and trouble. Hamilton's explanation in the Federalist of why the House was not included in the treaty-making process21 discloses no weighty reason why the House should not today be included in the treaty-enforcing process as far as domestic law is concerned. He said that the numbers in the House "forbid us to expect in it those qualities which are essential to the execu,tion of such a trust"22-surely an archaic view, especially since the House then was considerably smaller than the Senate is now. He further did not expect to find in it the accu- rate and comprehensive knowledge of foreign politics, steady adherence to the same views, uniform sensibility to national character, or the decision, secrecy, and dispatch necessary. None of these arguments apply, nor do those of inconvenience and expense in having the concurrence of a second body, I think, when the effect of treaty law on the lives of Americans is under consideration. If our usual law-making process is that burdensome, the proper move is to eliminate the House altogether . It has been asserted that under Section 2 the United States would not be able constitutionally to submit disputes to international claims commissions and other quasi-judicial bodies.23 Certainly the United States would be rendered incapable of binding itself to the delegation of some of its sovereignty, and properly so. But the national government would not be deprived of the power to promise to abide by international decisions, and then to so abide without the existence of any domestic legal necessity. And this I believe to be the proper state of affairs. Various ill-considered and meritless arguments have been advanced against the amendment. Among these is that the narcotics trade can no longer be controlled by treaty (fallacious, since the Congress can control the trade under the interstate commerce power) , and the statement that foreign troops on American soil would be subject to state laws on traffic control and

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the carriage of firearms where the states concerned refused to implement a treaty. The Schooner Exchange v.M'Faddon24 settled this question in the early years of the Republic: a nation has no jurisdiction over the troops of a friendly power on its soil with its consent, Chief Justice Marshall said.25 In summation it can be said that there are objections of more or less weight to any positive action. In this case they are of the latter variety. The genius of the American Republic has lain in its ability to discard lesser matters in order to retain the great rights, to avoid mere technical difficulties in order to reach the great goals. I am content to leave the critics of the amendatory proposals with the homely observation that it usually seems darkest just before the dawn. The adoption of the treaty-power amendment will be a twentieth-century addition to the Bill of Rights; with it, "The most brilliant work ever struck off at a given time by the brain and hand of man"26 would once more be secure from invasion. 1. The first clause in the amendment offered by Senator George in early 1954, Congressional Record, unbound edition, February 26, 1954 (Vol.100, No.37), p. 2235. See appendix for full text. 2. Mr. Holman, past president of the American Bar Association, whose work on the treaty law question during the last six years has made him one of the foremost authorities on the subject, expressed this view in a letter to J. H. Gipson, Sr., dated July 9, 1954. 3. My rephrasing, to avoid the objections presented by Sutherland, Arthur E., Jr., in "The Bricker Amendment, Executive Agreements, and Imported Potatoes," 67 Harv. L. R. 281 (1953), of a similar clause in an amendment proposed by Senator Knowland. See the appendix for the original text. 4. Holman, Frank E. : "Story of the 'Bricker' Amendment," Committee for Constitutional Government, New York, 1954; p. 47. See the appendix for the text of the Administration Amendment. 5. The second section of the text of Senate Joint Resolution 1, 83rd Congress, First Session-the "Bricker" Amendment. 6. Before the Holland case it has been said that state laws had to give way before a treaty when they involved "rights of aliens or rights of our citizens which were necessarily involved in international relations, and were beyond the proper or possible regulation by the government of a single state. State laws could be constitutionally overridden if there was in a treaty no attempted exercise of powers prohibited by the Constitution, or of powers not delegated to the Federal Government, but by the Constitution reserved to the states." (italics supplied) Richberg, Donald R. : "The Bricker Amendment and the Treaty Power," 39 Va. L. R. 753,755-6 (1953). 7. Unless the recently expanded conception of the commerce clause would permit continuation of federal control. 8. The case of Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948) makes this clear. There Congress had passed a statute which generally declared that aliens resident in the United States were to have equal rights with citizens. A California law purported to forbid to resident aliens not eligible for citizenship the privilege of fishing in the three-mile off-shore coastal belt of ocean. The plaintiff was a resident alien Japanese, ineligible for citizenship under the immigration and naturalization acts. The court held the California law invalid, pointing out that "under the Constitution the states. ..can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization, and residence of aliens in the United States or the several states." (at p. 419) It called this exercise of congressional power a derivation from the powers granted it over immigration and naturalization. It follows that Congress could regulate the effect of state laws upon aliens by a treaty implementing act under the proposed amendment, since it can do so in the absence of treaty under the Constitution as it now stands. 9. 78 Reports of the American Bar Association 245, 248. 10. Section two of the George Amendment does not reverse that case. It reads "An international agreement other than a treaty shall become effective as internal law in the United States only by an act of the Congress." Supra, note 1. It will be seen that this version leaves unchanged the present law relating to the internal effect of treaties. It does hit executive agreements, however; note that the clause ensures that no President acting in concert with a foreign nation will have lawmaking power over American citizens. 11. The third section of the George proposal, supra, note 1. 12. Press release by Frank Holman, Seattle, Wash., August 6, 1954.

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13. This amendment makes no effort to confirm the power of Congress to regulate the making of executive agreements, attempted by the third section of the Judiciary Committee version (set out in the appendix) .The "necessary and proper" clause presumably affords Congress that power now, though there is not complete agreement. See Hearings, supra, Chapter One, Note 6; p. 932 (Brownell), p. 892 (Dulles) . The invalidation of "other international agreements" not made "in pursuance" of the Constitution might conceivably have the effect of preventing the President from making binding committments without Congressional permission. Blanket Congressional authorization could of course be given for the making of routine agreements necessary to the day-to-day conduct of foreign affairs. 14. Which is my modification of the text offered by Senator Bricker in August, 1954. 15. It should be pointed out that the object of the Ware case was legitimate; the means was not. An indemnifying appropriation from the treasury of the United States (as was made in the end anyway to restore lost tempers: Hearings, supm, Chapter One, Note 6; pp. 110-11) would have accomplished the purposes of the treaty without violation of the fifth amendment. Similarly, in United States v. Pink American policy was perfectly legitimate. To have confined the claims assigned to the United States to those which the Russian government might constitutionally have collected would not have weakened, but strengthened, the American position. 16. Cf. The Chinese Exclusion Case, 130 U.S. 581 ( 1889) . 17. And beyond the recently enlarged interstate commerce powers of Congress, it should be noted. The migratory bird laws struck down before Missouri v. Holland probably are within Congressional competence now, at least as the Supreme Court views that competence. 18. Holman, Frank E. : "Story of the 'Bricker' Amendment," Committee for Constitutional Government, New York, 1954, p. 114. See Appendix C of the March 1, 1954, Report of the Standing Committee on Peace and Law Through United Nations (A.B.A.) for an excellent refutation of the so-called "48 states" argument. 19. Perlman, op. cit. supra Chapter Four, note 15, p. 841. 20. Canada v. Ontario, [1937] A.C. 3,26, 353. 21. Federalist Paper No.75. , 22. "The Federalist," M. Walter Dunne, publisher, New York, 1901, Vol. II, p. 83.. 23. Sutherland, op. cit. supra Chapter Four, note 21, p. 1330-31. See also his article "The Bricker Amendment, Executive Agreements, and Imported Potatoes," 67 Harv. L.R. 281 (1953) . 24. 7 Cranch 116 (1812) . 25. 7 Cranch 116, 189-40. 26. Gladstone, as quoted in Mullen, op. cit. supra, Chapter Two, note 27, at p. 736.

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A P P E N D I X

JUDICIARY COMMITTEE AMENDMENT

(The 1953 Bricker Amendment) SECTION 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect. SECTION 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty. SECTION 3. Congress shall have power to regulate all executive and other agreements with any foreign power or internationalorganization. All such agreements shall be subject to the limitations imposed on treaties by this article. SECTION 4. Congress shall have power to enforce this article by appropriate legislation.

THE GEORGE AMENDMENT SECTION 1. A provision of a treaty or other international agreement which conflicts with this Constitution shall not be of any force or effect. SECTION 2. An international agreement other than a treaty shall become effective as internal law in the United States only by an act of the Congress. SECTION 3. On the question of advising and consenting to the ratification of a treaty the vote shall be by yeas and nays, and the names of the persons voting for and against shall be entered on the Journal of the Senate. .

THE ADMINISTRATION AMENDMENT SECTION 1. A provision of a treaty or other international agreement which conflicts with this Constitution shall not be of any force or effect. The judicial power of the United States shall extend to all cases, in law or equity, in which it is claimed that the conflict described in this amendment is present. SECTION 2. When the Senate consents to the ratification of a treaty the vote shall be determined by yeas and nays, and the names of the persons voting for and against shall be entered on the Journal of the Senate. SECTION 3. When the Senate so provides in its consent to ratification, a treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress.

THE 1954 BRICKER AMENDMENT SECTION 1. A provision of a treaty or other international agreement which conflicts with this Constitution, or which is not made in pursuance thereof, shall not be the supreme law of the land nor be of any force or effect. SECTION 2. A treaty or other international agreement shall become effective as internal law in the United States only through legislation valid in the absence of international agreement. SECTION 3. On the question of advising and consenting to the ratification of a treaty the vote shall be determined by ayes and nays, and the names of the persons voting for and against shall

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be entered on the Journal of the Senate.

THE AUTHOR'S AMENDMENT SECTION 1. A treaty or other international agreement which conflicts with any provision of this Constitution, or which is not made in pursuance thereof, shall not be the supreme law of the land nor be of any force or effect. The judicial power of the United States shall extend to all cases, in law or equity, in which the defects enumerated in this article exist, and shall make the final determination of the questions involved. SECTION 2. A treaty or other international agreement shall become effective as internal law in the United States only through legislation valid in the absence of international agreement.

THE 1956 BRICKER AMENDMENT No treaty or other international agreement shall of itself be law within the United States, nor shall it enlarge the power of the Congress to enact law.

MARCH 5, 1956 PROPOSAL OF THE SENATE JUDICIARY COMMITTEE A provision of a treaty or other international agreement which conflicts with any provision of this Constitution shall not be of any force or effect. Author's Note: The texts of the last two versions printed above were issued too late for analysis to be included in the body of this second edition. The chief object of supporters of a treaty-power amendment has been to reverse the cases of Missouri v. Holland, which permitted a treaty to withdraw the right of a state to control game within its border, thus in effect placing the treaty over the Tenth Amendment; and United States v. Pink, which deprived creditors of a corporation of their property without due process of law, contrary to the Fifth Amendment, by means of an executive agreement. Would the new versions accomplish this aim? The 1956 Bricker Amendment would. The first clause ends self-executing treaties and ends the enforcement as law of a bare executive agreement. The second clause, while it permits Congress to transmute both into domestic law by appropriate legislation, forbids Congress to pass legislation for that purpose which it could not pass in the absence of an international agreement. Thus the Holland case is overturned, for Congress could not pass implementing legislation in conflict with the Tenth Amendment. Thus the Pink case is overturned, for even if Congress implemented an executive agreement, it could not suppress rights protected by the Fifth Amendment. Though the Constitution is not mentioned in the amendment it is well protected. Likewise it is intended that the 1956 Judiciary Committee version should accomplish the same purpose. The argument to be deduced from the Holland case, which must now be regarded as the law, is that although acts of Congress are to be the Supreme Law of the land when passed in pursuance of the Constitution, treaties are to be the Supreme Law when made under the authority of the United States. Hence they cannot "conflict" with the Constitution, for any apparent conflict is removed by the supremacy clause: treaties are supreme. An amendment which said "No provision of a treaty which conflicts with this Constitution. .." would, therefore, be valueless in reversing the Holland decision, because no treaty can conflict with the Constitution.

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But the addition of the phrase "any provision of" to the sentence suggests a different interpretation. It is meant to have the effect of segregating the supremacy clause and forcing a clause by clause comparison of the Constitution and a treaty. The discovery of a conflict between any part of the Constitution and a treaty clause would result, by the terms of the amendment, in the voiding of that part of the treaty. In other words it is the intent of the authors of this version to require an examination of more than the Supremacy clause in ascertaining the validity of a treaty provision, and this object is to be achieved by a phrase which tests the treaty against every provision of the Constitution. If this argument is adopted, the effect will be to place the treaty on the same legal footing as an act of Congress. Thus the Holland and Pink cases will be reversed. The converse argument is not difficult to make. It would be that this new version does not change the present law because if by virtue of the Supremacy clause no treaty can "conflict" with the Constitution now, it can hardly "conflict" with any provision of it. Thus the amendment would be a mere restatement of the doctrine of the Holland case. The answer to this argument lies not in the amendment, but in its implied premise: the fact of the adoption of the amendment changes the existing law by implying that treaties can conflict with the Constitution. The only way that conflict can exist is if the Holland case was erroneous, and the Supremacy clause has no such effect as was there given it. Conflict thus being impliedly declared possible, the amendment dictates the result if it in fact exists. The question of whether a given treaty is self-executing or not is unresolved by this version. I regard this matter as relatively unimportant. Though this version is the least acceptable of the several offered by the Judiciary Committee or Senator Bricker, since so much is left to implication and is therefore capable of misinterpretation, it may be sufficient to do the job.