36. ERNEST J. BROWN, PROFESSOR OF LAW, LAW SCHOOL OF HARVARD UNIVERSITY I have your letter of December 21, 1956, with the enclosed copy of Dean McCall's letter and the statements of others with respect to the Bricker Amendment. I have not previously submitted a statement because it seemed to me that there was little to be added to substance of the excellent statements of others in opposition to the Bricker Amendment, and I saw no reason for merely cumulative addition. However, if it is now a question of how many teachers of Constitutional Law are opposed to the Bricker Amendment, then certainly I wish to be counted with that opposition. At best, the Bricker Amendment would be a purposeless and useless appendage to the Constitution. But if its uncertain language did accomplish the purposes of its sponsors we should be rejecting the lessons of bitter experience during the period from 1781 to 1788-we should be shackling our ability to act effectively in a world where, as never before, our freedom of action may be essential. I can see the Amendment only as a short-sighted attempt to pretend that the world of today does not exist. Very truly yours, ERNEST J. BROWN 37. ARCHIBALD COX, PROFESSOR OF LAW, LAW SCHOOL OF HARVARD UNIVERSITY This will acknowledge your letter of December 21, 1956. In view of Dean McCall's letter it seems proper to state that I am opposed to all the versions of the Bricker Amendment, I did not reply to the earlier letters because I doubt the value of bare assertions of approval or opposition and I lack the time to make a reasoned exposition of my view. On the other hand, if heads are to be counted, I record myself as opposed to the amendments and generally sympathetic to the views set forth in the letter prepared by Dean Fordham and his associates. Very truly yours, ARCHIBALD COX 38. CHARLES FAIRMAN, PROFESSOR OF LAW, LAW SCHOOL OF HARVARD UNIVERSITY LANGDELL HALL CAMBRIDGE 38, MASS. 12 December 1956 Dean Jefferson B. Fordham 3400 Chestnut Street Philadelphia 4, Pa. Dear Mr. Fordham: I wish to join with you and with Deans Griswold, Rostow, Stason and Warren in subscribing to the Statement of Position on the Bricker Amendment (1956) by the Committee for Defense of the Constitution by Preserving the Treaty Power. Although a good deal of patriotic fervor has been whipped up on behalf of this Amendment in its various forms, the hard fact is that what it seeks would result in crippling a vital power of the United States in its dealings with foreign governments. Sincerely yours, CHARLES FAIRMAN 39. PAUL A. FREUND, PROFESSOR OF LAW, LAW SCHOOL OF HARVARD UNIVERSITY LAW SCHOOL OF HARVARD UNIVERSITY CAMBRIDGE 38, Mass. January 4, 1957 Mr. W. J. Schrenk, Jr. Committee for Defense of the Constitution 36 West 44th Street New York 36, N. Y. Dear Mr. Schrenk: Your letter of December 21 has just reached me. My views in opposition to the proposed constitutional amendment sponsored by Senator Bricker were set out in a letter to Senator Wiley in August 1953. The current modification of that proposal, sponsored by Senator Dirksen, is in my judgment subject to essentially the same objections. The current version provides that a provision of a treaty or other international agreement which conflicts with any provision of the Constitution shall not be of any force or effect. This formulation is either meaningless or dangerous. It is meaningless if it simply restates what the Supreme Court has said repeatedly, that a treaty could not abrogate rights specifically guaranteed by the Constitution or change the fundamental character of our government. Presumably the sponsors do not seek merely to restate existing law. They probably mean to effect a redistribution of power under the treaty-making clause of the Constitution at the expense of the national government. This view is supported by the use of the phrase "any provision of" the Constitution, since if the Constitution as a whole were to be the touchstone, the treaty-making power conferred by Article VI would itself remain the standard for judging the validity of international agreements. I should like to make three points by way of fundamental criticism of the proposal. 1. Our experience with constitutional amendments has been sufficient to warn us against loose, ill-digested formulas as restrictions on the powers of gov ernment. Such phrases as "privileges and immunities of citizens of the United States" in the Fourteenth Amendment have been a besetting source of confusion. In the international realm, where bilateral undertakings must be negotiated, it would be particularly unfortunate to have the scope of our Government's power clouded in uncertainty. 2. The proposal would seriously threaten the most familiar, beneficent and hitherto noncontroversial kind of treaty, namely treaties of commerce and friendship and those regulating reciprocally the rights of inheritance. Such matters as the right to engage in local business or to inherit land would presumably fall outside of national power if the treaty power is redefined as the sponsors of the proposed amendment evidently desire. I cannot believe that they have faced up to the consequences of their position. 3. Another and quite different consequence might follow. In order that the Constitution might continue, in Marshall's words, to endure for ages to come and to meet the various crises in human affairs, the Supreme Court might well sustain exercises of the treaty power under the proposed amendment by giving an expanded construction to the existing provisions of the Constitution allocating powers to the national government. The proposal might, in short, prove to be a boomerang. To sum it up, the proposal is a nostrum for an ailment which has not been diagnosed, and a nostrum which either has no potency or involves the risk of highly detrimental side effects. In my judgment this is neither good therapy nor good statesmanship. Very sincerely yours, PAUL A. FREUND Paul A. Freund |