of the country and certainly to the Congress, more particularly to the United States Senate, the fact that we have a Constitution and that there are questions arising under that Constitution upon which patriotic men and respectable lawyers, legal scholars may differ. It is in that respect that I have this prepared statement and welcome this opportunity to come here as a member of this committee as well as a witness.

Senator KEFAUVER. I think there are many hundreds of thousands of good citizens to say nothing of legal students and Members of Congress who are much more acquainted with the provisions of the Constitution by virtue of the long hearings we have held before this committee and the debates on the floor of the Senate, all of which have been on a very high plane in connection with the amendments which have been submitted in the previous years.

Senator Hennings, we will hear from you at this time.

Senator HENNINGS. Thank you, Mr. Chairman. With your permission, I will undertake to proceed.

I appear this morning as a witness before the Constitutional Amendments Subcommitee rather than as a member of this subcommittee, at the request of the chairman and as a courtesy to my distinguished colleague, Senator Bricker of Ohio.

I want to make abundantly clear at the outset that I do not question in the slightest the patriotism or good intentions or high mindedness of my friend John Bricker. He is, in my opinion, one of the most high-minded members of the Senate.

Everyone is entitled to his day in court, although in this case we have, over the years, devoted a multitude of days in court to the multitude of different versions of the Bricker amendment. Today we have before us yet another version of this proposed amendment. This year, Senator Bricker was a bit tardy in rushing in with his proposal and it is labeled Senate Joint Resolution 3, rather than Senate joint resolution 1 as it was for so long in the past.

Senator BRICKER. I got caught in the inauguration program, Tom. Senator HENNINGS. I thought maybe something like that had happened.

As I understand it, this is Senate Joint Resolution 3's day in court. In order that both sides of the question might be presented-not only to this subcommittee but also to the public-I agreed to assume again my oft-repeated role in opposition to amending the constitutional powers of the Federal Government and its President in the conduct of foreign affairs and defense of the Nation.

It is my considered judgment that what we are engaged in here this morning is in a sense an exercise in futility; but it is not a new exercise; we have been engaged in it for years.

In fact we have had a rather complete workout for some 5 years now I believe on this.

Yet, lest there be any misunderstanding, let me assure the dwindling number of proponents of this measure that as long as they come back, year after year, with their proposal, there will be those of us who-in subcommittee, in committee, and on the floor of the Senatewill, just as persistently, point out the dangers and the pitfalls inherent in this radical, though innocent sounding, amendment. Let me assure the proponents that they shall not win by default.

Senator BRICKER. We lost before just by one vote.

Senator HENNINGS. Yes; I will never forget that night either. It was on the joint substitute relating to executive agreements.

We debated I believe 5 weeks, didn't we, on the floor and more or less continuously, in which the distinguished chairman took a considerable part and the distinguished Senator from Illinois.

My remarks today, Mr. Chairman, shall be as brief as possible. However, I have prepared a supplementary written statement which covers in more detail two of the major points I am about to make, i. e., the effect of the recent Supreme Court decision in Reid v. Covert, and a section-by-section analysis of Senate Joint Resolution 3. I ask the chairman to have this statement printed in the record at the conclusion of my remarks.

Senator KEFAUVER. Without objection it will be printed immediately following your remarks.

Senator HENNINGS. No case has been made for the need for an amendment of the Constitution. The burden of showing the need or the desirability of any amendment rests squarely upon the proponents. But they have failed to reveal either any need or any useful purpose that would be served.

I don't mean to suggest any frivolity when I say that tinkering with the Constitution or amending the Constitution or changing the language as laid down and placed in it by the Founding Fathers is very serious business.

It is very far-reaching, and I am sure I need not remind the members of this subcommittee of that fact.

The grave importance of any amendment to the Constitution and the pitfalls involved in changes were summarized by the Attorney General of the United States, Mr. Herbert Brownell, Jr., when he stated before this subcommittee in May 1955, that—

Changing the Constitution is a serious undertaking. The checks and balances which it provides are delicate. They are intended to prevent tyranny and dictatorship, but at the same time to enable the Federal Government to deal effectively with other nations. Even a slight redistribution of powers could leave us without adequate powers so to function. The success with which our country has dealt with both foreign and domestic problems under the Constitution for more than 160 years should not be disregarded. It should not lightly be traded for an experiment (hearings, 1955, p. 277).

As I understand the proponents of the constitutional amendment contained in Senate Joint Resolution 3, one of their principal arguments is that under the Constitution as it stands treaty provisions may annul constitutional guaranties such as those contained in the Bill of Rights. The falsity of this contention is amply demonstrated by an unbroken line of Surpeme Court cases. More than 100 years ago, the Court said in Doe v. Braden:

The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.

That proposition is very fundamental of course.

No treaty can be annuled or should be annuled, and by the same token no treaty can be made nor can be in force or effect if it violates the Constitution of the United States.

Nor on the other hand can it be annuled unless it violated the Constitution of the United States.

The Constitution is supreme.

The proposition that a treaty cannot violate the Constitution was reiterated in Hauenstein v. Lynham (1880) and Geofroy v. Riggs (1890).

Many times the proponents of constitutional amendments to curtail the treaty power of the United States and the authority of the President have misrepresented, I think, the purpose of another Supreme Court case, Missouri v. Holland. They have cited Justice Holmes' opinion there for the proposition that there are no limits on what a treaty can do in relation to the Constitution.

Apparently they have overlooked or perhaps motivated by zeal have preferred not to see the following statements in that opinion:

We do not mean to imply that there are no qualifications to the treaty-making power

* **

*** The treaty in question does not contravene any prohibitory words to be found in the Constitution.

Four years later, the Court again stated that the treatymaking power of the United States

does not extend "so far as to authorize what the Constitution forbids" (Asakura v. Seattle, 265 U. S. 332, 341 (1924)).

Now, on the proposition that the Supreme Court could not be clearer, I will undertake to briefly address myself to that. Mr. Chairman, when the Supreme Court handed down its recent decision in Reid v. Covert, I said to myself, "Now, even Senator Bricker will be convinced that his amendment is not needed." Apparently, I could not have been more mistaken, because here we are again today.

No one has shown how this decision can be construed-even by the wildest stretch of the imagination-as not completely cutting the ground out from under the proposed amendment.

In my opinion, and most respectfully to my learned colleague from Ohio, I do not see how any constitutional lawyer can read this decision and still be convinced that any amendment is necessary.

Let us look at the words of the Court:

*** no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.

Article VI, the supremacy clause of the Constitution, declares : "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;

****

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. * * * It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights-let alone alien to our entire constitutional history and tradition-to construe article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. The Court then goes on to cite a whole string of previous cases in

which it reached the same result-cases going back over a hundred years.

Could the Court be any clearer than it has in this most recent recitation of an old and hallowed, time-honored proposition? Is there anything, in fact, that the Court could have said to convince those who favor a constitutional amendment just for the sake of a constitutional amendment? It could, theoretically, be argued that any and every proposition of law enunciated by the Court, no matter how clearly and how often, should be enshrined in the Constitution, since at some future time, some future Court, under some unexplained aberration of circumstances might, perhaps, conceivably change its mind-maybe. It seems to me that that is what the proponents of amendment of the treaty power are proposing today.

The argument has been made that there is some slight ambiguity in the fact that only four Justices signed the opinion containing the Court's words on the supremacy of the Constitution over treaties. As lawyers, we know this is entirely irrelevant.

Two other Justices (Frankfurter and Harlan), in separate opinions, concurred in the result reached by the Court.

Two other Justices (Clark and Burton) dissented, but on grounds having nothing whatever to do with the supremacy clause. I wish to stress that there is nothing-not a single word-in either the concurring or dissenting opinions to indicate these four Justices do not agree entirely with the Court's clear-cut restatement of the supremacy of the Constitution.

I challenge the proponents of the amendment-those few who remain after this devastatingly clear opinion-to point to a single phrase in any of the four opinions that gives the slightest credence to their contention that a constitutional amendment is necessary.

In short, in my opinion, they are bluffing. The decision is clearly the other way. If there was ever any need for an amendment, based on doubt as to the Court's holdings-and I don't think there ever wasthat need has now completely vanished in the light of this opinion. I think too, Mr. Chairman, that Senate Joint Resolution 3 is unnecessary. In addition to that, I think it is new, and I think it is a very dangerous proposal; although, superficially, it may sound similar to the previous proposals, it is an entirely new version, the practical results of which are unknown.

As we have discovered in past hearings on various versions of the distinguished Senator from Ohio's various amendments, the mere addition or subtraction of a single word or phrase might completely change the effect of a whole section. To put it mildly, this is a tricky business, and we must proceed with utmost caution. The Constitution of the United States is not to be tinkered with lightly. We must carefully weigh the meaning and effect of each word.

The effect of the language of the proposed amendment is open to serious question. If, for example, the provisions of section 1 were merely intended to confirm and declare existing law, they would have no legal significance. However, the legislative history of similar provisions in earlier proposals would not support the view that such provisions were intended to be or should be construed by the courts as merely declaratory and confirmatory of existing law.

The whole impact of fears expressed and proposals made by proponents of earlier versions of an amendment all point to one conclu

sion; an intent to limit the power of the United States to make treaties and other international agreements.

In the light of this intent of the proponents, the words "in pursuance of this Constitution" in section 1 might be interpreted by the courts as invalidating all treaty provisions on matters not within the expressly delegated powers of the Congress.

The provisions of section 2 might also be interpreted as placing the same limitation on the power of Congress to implement a treaty, with the result that very many important treaty provisions could not be enforced unless implemented by each and every one of the 48 States.

Section 2 would encourage the Senate to leave the implementation of treaties partly to the Congress and partly to the States. The crippling effect of dependence upon the Sates for the enforcement of treaty provisions was a grievous experience under the Articles of Confederation, as any student of history knows.

Section 2 would apply not only to subsequent treaties but also all international commitments entered into by the United States since the adoption of the Constitution. The inclusion in section 1 of the provision that "This section shall not apply to treaties made prior to the effective date of this Constitution" shows clearly an intent that the section shall be retroactive. Both sections might, accordingly, be construed as preventing enforcement within the United States of many existing treaties and agreements unless and until necessary legislation were enacted by the Congress or by the States or by both.

The provisions of both sections 2 and 3 clearly infringe upon the traditional constitutional powers of the President. Both sections would make the effectiveness of any executive agreement as a law in the United States dependent upon legislation, and section 3 would limit such legislation to the expressly delegated powers of the Congress.

Those two sections could prevent the enforcement within the United States of an executive agreement made by the President under his constitutional authority as Commander-in-Chief. President Eisenhower has clearly stated his position in this connection. He has consistently stated that he will not accept any amendment which would hamper the President in his constitutional authority to conduct the foreign affairs and defense of the Nation.

Some of the proponents have asserted that the treatymaking power is a gap in the protection afforded by the Constitution.

It is submitted that an examination of our entire history, including all that has been presented for and against each of the proposed amendments, fails to show any such gap. On the contrary, any such amendment would certainly create a great gap: it would shoot a big hole in the Constitution; a big hole in the very part where authority is now and has been provided for over 160 years to deal effectively with other nations through peaceful negotiations.

Shall this Nation continue to speak with one voice in the conduct of its foreign affairs, as it has done for 160 years under the Constitution, or shall it revert to the impotent and crippling condition it found itself in under the Articles of Confederation?

I submit that handing back to the States the authority to decide what treaties can be enforced and otherwise hamstringing our power