We have some 2 or 3 dozen witnesses who want very much to appear, members of the bar, some Senators. We might proceed this morning. Senator KEFAUVER. I think that is the policy to be followed of course. We have asked the Department of Justice and Department of State and other departments interested in this bill for reports, and these reports have not been received. When received they will be made a part of the record. Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, United States Senate, Washington, D. C. JANUARY 20, 1958. DEAR SENATOR: This is in response to your request for the views of the Department of Justice concerning the joint resolution (S. J. Res. 3) proposing an amendment to the Constitution of the United States relating to the legal effect of certain treaties and other international agreements. The Department is of the view that this joint resolution does not differ materially from several earlier formulations of the amendment on which former Attorney General Brownell testified before a subcommittee of the Committee on the Judiciary (hearings on S. J. Res. 1 and S. J. Res. 43, 83d Cong., 1st sess., pp. 901-947; hearings on S. J. Res. 1, 84th Cong., 1st sess., pp. 276-304). The Department is of the opinion that the version of the amendment as proposed in this joint resolution is subject to the basic objections set forth in his testimony. Accordingly, the Department of Justice recommends against favorable action on the joint resolution. The Bureau of the Budget has advised that there is no objection to the submission of this report. Sincerely, Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, United States Senate. LAWRENCE E. WALSH, DEPARTMENT OF STATE, Washington, D. C., August 26, 1957. DEAR SENATOR EASTLAND: Your letter of June 26, 1957, acknowledged by the Department on July 3, requested the Department's views on Senate Joint Resolution 3, "Proposing an amendment to the Constitution of the United States, relating to the legal effect of certain treaties and other international agreements." The Department of State opposes Senate Joint Resolution 3. The constitutional amendment proposed therein is open to many of the same basic objections which President Eisenhower and Secretary Dulles expressed with regard to previous versions of this amendment. It would place unnecessary restrictions on the treaty power and have a crippling effect on the conduct of foreign relations. Senate Joint Resolution 3 proposes limits to the treatymaking power in terms which at best are uncertain in meaning and legal effect. Both section 1 and section 2 contain language which might be interpreted as invalidating treaty provisions on matters not within the expressly delegated powers of the Congress. This could mean the collapse of our whole commercial treaty system. Section 2 might actually require legislation not only by the Congress but also by all 48 States to make some types of treaty provisions effective. As section 1 is clearly retroactive and section 2 apparently so, they could throw into confusion the standing of existing treaties and agreements and produce years of litigation in our courts. Sections 2 and 3 of the proposed amendment would require legislation to make any executive agreement enforcible in the United States, and section 3 would specifically limit such legislation to the expressly delegated powers of Congress in the absence of international agreement. Those provisions would subject the day-to-day conduct of foreign affairs to crippling impediments and would hamper the President in his constitutional authority to conduct the foreign affairs and defense of the Nation. The Department is preparing and documenting a detailed statement in support of the views expressed in brief in this letter. As soon as that statement is completed it will be submitted to the committee. DEAR SENATOR EASTLAND: This is in further response to your request of June 26, 1957, for the Department's views regarding Senate Joint Resolution 3, proposing an amendment to the Constitution of the United States, relating to the legal effect of certain treaties and other international agreements, to which the Department replied on July 3 and August 26, 1957. I enclose a detailed memorandum, prepared by the legal adviser, representing the Department's views on the proposed constitutional amendment. The Department is informed by the Bureau of the Budget that it has no objection to the submission of this report. Sincerely yours, WILLIAM B. MACOMBER, Jr., MEMORANDUM BY DEPARTMENT OF STATE REGARDING SENATE JOINT RESOLUTION 3 (85TH CONG.) PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, RELATING TO THE LEGAL EFFECT OF CERTAIN TREATIES AND OTHER INTERNATIONAL AGREEMENTS Senate Joint Resolution 3 of the 85th Congress proposes to amend the United States Constitution in regard to the treatymaking power and to limit the power of the President in the conduct of foreign affairs. These are areas of vital concern, and any proposal to change the Constitution so as to alter or limit such powers must be regarded with the utmost caution. In the light of past history and present circumstances, and more especially with a view to future requirements, it seems clear that any diminution of the Nation's power to deal effectively with other nations involves serious risks to national well-being. Past experience The early treaty experience of the United States under the Articles of Confederation revealed the crippling effect of a weak treaty power. During the Revolutionary War the United States concluded a treaty of amity and commerce with France, and at the close of the war a treaty of peace with Great Britain, containing provisions in favor of certain British creditors. Although the Articles of Confederation provided that Congress could make and ratify treaties, fulfillment of treaty promises was left to legislative action by the several States. The States paid little attention to the treaty obligations which had been assumed, the courts refused to enforce them, and the Federal Government was powerless to compel compliance. The condition under the Articles of Confederation was described by Hamilton in the Federalist, No. 22: "The treaties of the United States under the present Constitution, are liable to the infractions of 13 legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, and the peace of the whole Union are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?" It was for the express purpose of overcoming the inadequacy of the Articles of Confederation that the treaty provisions of the Constitution were drafted. The Founding Fathers deliberately gave us an effective treaty power. By article II, section 2, they placed the treaty making power in the President, with the concurrence of the Senate. By article I, section 10, they provided that no State, without the consent of Congress, could enter into an agreement with a foreign power. By the supremacy clause of article VI, they made clear that treaties were to be part of the law of the land, binding on the courts of every State, even where State laws and constitutions might be to the contrary. The treaty provisions of the Constitution were adopted with the specific purpose of insuring that treaty obligations would be binding in every State of the United States and upon all of its citizens. These treaty provisions have worked well in the 168 years since the Constitution entered into force. In the light of this record, it is difficult to perceive any need for amending the treaty power. Present circumstances and future needs On the other hand, present world circumstances show the increasing need for nations to turn to treaties to promote their common interests, pool their scientific and technical knowledge, and secure their mutual defense. In order to do this effectively, nations must be able reciprocally to promise to exercise their sovereign powers in a certain way, or to refrain from exercising them. As the community of nations becomes more closely knit, the need for promoting common progress through treaties becomes more apparent. The needs of the future are not fully known, but recent scientific advances are clear warning that it is imperative that friendly nations have the power and flexibility in the future to work in unison to accomplish desirable goals. Even now, the necessity of pooling effort and knowledge on basic scientific research and technical projects with our NATO allies seems clear. Also, efforts are being continued to reach agreement on disarmament. If such projects are to succeed, they will be achieved within the framework of treaties. Under these circumstances, it will be essential that the United States be in a position to give positive assurances that obligations undertaken will be adhered to. This we can scarcely do if the treaty power is to be substantially weakened. A proposal to limit the legal effect of treaties and other international agreements should be considered against this background. Now, less than at any time in history, can we afford to risk weakening the effectiveness of our treaty power and curtailing the authority of the President in the conduct of foreign affairs. Careful analysis of the language of Senate Joint Resolution 3 confirms that such risks are inherent in the proposed resolution, just as they have been in its various predecessor versions. Although the language of Senate Joint Resolution 3 is uncertain in meaning and legal effect, each of its first three sections can be logically interpreted in ways that are clearly harmful. Section 1 Section 1 of Senate Joint Resolution 3 provides: "A provision of a treaty or other international agreement not made in pursuance of this Constitution shall have no force or effect. This section shall not apply to treaties made prior to the effective date of this Constitution." The effect of this language is open to serious question. The words "in pursuance of this Constitution," when applied to treaties, raise a serious question of interpretation. Would they have the same meaning as they have when applied to laws of the United States? If so, they might be construed as invoking the same tests of constitutionality, including the necessity of being within the legis. lative powers expressly delegated to the Congress. Secretary Dulles clearly pointed out the dangers of such language when he testified before the Senate Judiciary Committee in May 1955 with respect to Senate Joint Resolution 1 of the 84th Congress. Referring to the case of Missouri v. Holland (252 U. S. 416 (1920)), he stated: 66 ** It was there indicated that the phrase 'in pursuance of the Constitution' was used relative to statutory law, for the reason that the executive branch of the Nation was limited to the exercise of expressly delegated powers; but that different language was used in relation to treaties because, in the field of foreign affairs, the President and the Senate were to act for the Nation as a whole. "If this interpretation is accepted, the result of applying the 'pursuant to' clause to treaties might be to invalidate that large part of our existing treaty structure which is applicable to States and to create, for the future, the very situation of impotence which the Constitution was designed to end. "As President Eisenhower pointed out on April 27 last: "The Constitution had as one of its principal reasons for coming into being the conduct of the foreign affairs of the United States as a single unit, not as 48 States'" (hearings, 1955, pp. 168, 169). The interpretation mentioned by Secretary Dulles might, if adopted by the Supreme Court, turn back the clock to the weak and chaotic condition of our Government under the Articles of Confederation. It would give section 1 of the proposed new amendment the same objectionable effect as the "which clause" of previous versions.1 Describing that effect, Secretary Dulles pointed out in 1955 that: "A survey of all treaties entered into by the United States since 1789 shows that approximately 30 percent of them could not have been concluded and effectuated under the constitutional amendments now proposed in the absence of legislative action by all of the States, as well as by the Congress" (hearings, 1955, p. 169). The assertion that section 1 is intended to be merely declaratory of existing law does not insure that it will be given that effect. No need for a truly declaratory amendment has in fact been demonstrated. To the contrary, a long line of Supreme Court decisions has firmly established that a treaty cannot violate the Constitution or do what the Constitution forbids. Doe et al. v. Braden (16 How. 635 (1853)); The Cherokee Tobacco (11 Wall. 616 (1870)); Hauenstein v. Lynham (10 Otto 483 (1880)); Geofroy v. Riggs (133 U. S. 248 (1890)); Missouri v. Holland (252 U. S. 416 (1920)); Asakura v. City of Seattle (265 U. S. 332 (1924)). Had there been any doubts as to the continued judicial interpretation of the subordinate status of treaties and agreements to the Constitution, those doubts should have been dispelled by the Supreme Court's recent decision and opinions in Reid v. Covert (77 S. Ct. 1222, 1230 (1957)). Mr. Justice Black, speaking for the Chief Justice, Mr. Justice Douglas, Mr. Justice Brennan, and himself, said: “*** 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." In considering what interpretation the Supreme Court might, in the future, give to the proposed amendment, if adopted, it is important to bear in mind that the existing legislative history of this amendment reveals a clear intention to cut down on the treaty power of the United States and to curtail the authority of the President in the conduct of foreign affairs. In particular, the holding of the Supreme Court in the case of Missouri v. Holland, namely, that the subject 1 Sec. 2 of S. J. Res. 1, as reported by the Senate Judiciary Committee, June 15, 1953, provided as follows: "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty." matter of treaties is not limited to the specifically delegated powers in the Constitution, has been the principal target of the numerous proposals submitted during the past few years for amending the treaty power. This fact would be of serious concern to the Supreme Court in construing the language of section 1 if that language were to become part of the Constitution. Regarding judicial interpretation. Hugh Evander Willis in his Constitutional Law of the United States, 1936 edition, page 94, states: "The courts should endeavor to carry out the real purpose and intent of a provision. This intent must be embodied in the instrument itself (Lake County v. Rollins ((1889), 130 U. S. 662)). But if a provision is doubtful it may be examined in the light of its prior and contemporaneous history (Maxwell v. Dow ((1900), 176 U. S. 581))." There is no guaranty that the Supreme Court would not regard section 1 as necessarily intended to have some effect on the treaty making power. Since the Court has already made abundantly clear that no treaty can do what the Constitution forbids, it might conclude, in the light of both the particular language used and the contemporaneous history, that the intention and effect of the section were to confine the treaty power to the limits of the legislative powers delegated to the Congress in the absence of treaty. Section 2 Section 2 of Senate Joint Resolution 3 provides as follows: "A treaty or other international agreement shall have legislative effect within the United States as a law thereof only through legislation, except to the extent that the Senate may provide affirmatively, in its resolution advising and consenting to a treaty, that the treaty shall have legislative effect." This section, like section 1, presents several disturbing questions. The most immediate question is: What useful purpose would such a provision serve? The Senate is now free to withhold its approval of a treaty until any legislation which it may consider necessary or desirable has been passed by the Congress. However, if section 2 were enacted, the term "legislation" might be construed as legislation under the delegated powers of the Congress. Under that section, whenever the Senate did not provide affirmatively in its resolution of advice and consent that the treaty should have legislative effect, the implementing power of the Congress might be automatically limited to its delegated powers in the absence of treaty. This would leave the implementation of many types of treaties to the legislative discretion of the 48 States. In support of such an interpretation there appears in the record the statement of Senator Bricker that "Under section 2 most treaties would be implemented by Congress, while others might require implementation by State legislation" (Congressional Record, Jan. 7, 1957, p. 260). Here again there exists a real danger of a new "which clause." The section might encourage the Senate to leave implementation of treaties partly to the Congress and partly to the States. As a matter of policy it is highly undesirable for States to be allowed to follow their own choice in implementing treaties. Some treaty provisions might never be implemented in all of the 48 States, and the United States, therefore, may find itself in the role of a treaty violator. Treaty obligations are necessarily reciprocal. If the United States should disable itself now from giving full effect to treaty obligations within each of the 48 States, it would soon be unable to obtain reciprocal rights and benefits for American citizens abroad. With American commercial and industrial operations steadily expanding overseas, the protections afforded through our treaties of friendship, commerce, and navigation are increasingly important. Section 2 might seriously impair our ability to secure, through such treaties, the right of American citizens and companies abroad to do business and to be protected against discriminatory treatment. As applied to executive agreements, section 2 deals with the need for legislation to give effect to executive agreements in the United States. Section 3 also deals with this subject, partly in the same terms and partly in differing terms. This dual treatment tends to obscure the meaning and effect of each of the sections and their relation to each other. Clearly, such repetitious and overlapping provisions have no proper place in the Constitution of the United States. The very serious questions raised by both sections as regards executive agreements will be discussed under section 3. |