the Constitution forbids. Constant assertion by Senator Bricker of the need for an amendment cannot create that need. The Court's record speaks for itself. Interpretation in doubt

Both the particular wording of the present proposal and the existing legislative history of the amendment reveal 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. It would be foolhardy to expect the Supreme Court in the future to ignore that history and intention. As the Court stated in Maxwell v. Dow (176 U. S. 581):

"What individual Senators or Representatives may have urged in debate, in regard to the meaning to be given to a proposed constitutional amendment, or bill, or resolution, does not furnish a firm ground for its proper construction, nor is it important as explanatory of the grounds upon which the Members voted in adopting it. (Citing United States v. Trans-Missouri Freight Association (166 U. S. 290); Dunlap v. United States (173 U. S. 65).) In the case of a constitutional amendment it is of less materiality than in that of an ordinary bill or resolution. A constitutional amendment must be agreed to, not only by Senators and Representatives, but it must be ratified by the legislature or by conventions, in three-fourths of the States before such an amendment can take effect. The safe way is to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted." If the proposed amendment were adopted, the Supreme Court could look to the language of the instrument and to the known object for which it was adopted and reasonably conclude that the amendment did, in fact, alter the treaty power and deprive the President of existing constitutional powers in foreign affairs.

Dangerous consequences

I continue to believe that any form of the Bricker amendment yet devised would be a harmful and dangerous alteration in the fundamental law of this Nation. The language presently under consideration has possibilities and pitfalls which could bring irreparable harm to our international prestige and could wrest from the President his historic role as the Nation's leader in its dealings with other countries, I urge that this subcommittee reject this or any other proposal which would throw a constitutional cloud over our treaty relations with other nations and weaken the existing constitutional powers of the President to preserve and defend the Nation.

COMPILATION OF QUOTATIONS FROM OPINIONS OF THE UNITED STATES SUPREME COURT ON THE TREATY POWER UNDER THE CONSTITUTION

Doe et al. v. Braden (16 How. 635 (1853)):

"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."

The Cherokee Tobacco (11 Wall. 616 (1870)):

"It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument."

Hauenstein v. Lynham (10 Otto 483 (1880)):

"We have no doubt that this treaty is within the treatymaking power conferred by the Constitution *** There are doubtless limitations of this power as there are of all others arising under such instruments; ***”.

Geofroy v. Riggs (133 U. S. 258 (1890)):

"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***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 of 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 * Missouri v. Holland (252 U. S. 416 (1920)):

"We do not mean to imply that there are no qualifications to the treatymaking power; *** The treaty in question does not contravene any prohibitory words to be found in the Constitution.'

Asakura v. City of Seattle (265 U. S. 332 (1924)):

"The treatymaking power of the United States is not limited by any express provision of the Constitution, and, though it does not extend 'so far as to authorize what the Constitution forbids' it does extend to all proper subjects of negotiation between our Government and other nations."

PARITY OF TREATIES AND LAWS

Head Money Cases (112 U. S. 580 (1884)):

"So far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal."

Whitney v. Robertson (124 U. S. 190 (1888)):

"By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other *** if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is selfexecuting."

Chae Chan Ping v. United States (130 U. S. 581 (1889)):

"The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case the last expression of

the sovereign will must control."

United States v. Minnesota (270 U. S. 181 (1926)):

"Of course, all treaties and statutes of the United States are based on the Constitution ***. The decisions of this Court generally have regarded treaties as on much the same plane as acts of Congress, and as usually subject to the general limitations in the Constitution * ****

SUPREMACY OF THE CONSTITUTION

Marbury v. Madison (1 Cranch 137 (1803)):

"The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

"If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written consitutions are absurd attempts, on the part of people, to limit a power in its own nature illimitable."

"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the Nation ***"

"Those, then, who controvert the principle that the Constitution is to be considered. in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law." "The judicial power of the United States is extended to all cases arising under the Constitution.

"Could it be the intention of those who gave this power, to say that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

"This is too extravagant to be maintained."

“*** in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

99860 0-58——3

"Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; ** * 99

United States v. Curtiss-Wright Export Corporation, et al. (299 U. S. 304 (1936)):

“*** we are dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary, and exclusive power of the President as the sole organ of the Federal Government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."

Senator BRICKER. May I have, after reviewing these, the privilege of submitting articles contradictory to them?

(The subsequent letter addressed to Hon. Estes Kefauver, dated July 8, 1957, was received from Hon. John W. Bricker. The statements referred to will be found in the appendix to the hearing.) (The letter referred to is as follows:)

Hon. ESTES KEFAUVER,

United States Senate, Washington, D. C.

JULY 8, 1957.

DEAR SENATOR: You will recall that at the hearings on Senate Joint Resolution 3, I was accorded the privilege of having printed in the record of hearings of your subcommittee on Senate Joint Resolution 3 certain statements which would appear in regular-size type rather than in small print. Senator Hennings had previously requested and received permission for statements of the Association of the Bar of the city of New York and of the Committee for Defense of the Constitution by Preserving the Treaty Power to appear in normal-size type. Accordingly, I request that the following statements in support of Senate Joint Resolution 3 appear in the appendix of the record:

(1) Statement of Hon. Frank E. Holman, past president of the American Bar Association.

(2) Statement of Dr. George F. Lull, secretary and general manager of the American Medical Association.

(3) Statement of W. L. McGrath, president of the Williamson Co.

(4) Report of the American Bar Association standing committee on peace and law through United Nations, dated July 1, 1957.

(5) Statement of Dr. George A. Finch, vice chairman, American Bar Association standing committee on peace and law through United Nations.

Sincerely yours,

JOHN W. BRICKER.

Senator KEFAUVER. You may have that privilege, Senator Bricker. I want to thank Senator Bricker and Senator Hennings for giving us their very able statements, thoughtfully prepared statements in support of and in opposition to the present amendment Senate Joint Resolution 3.

Senator Dirksen, do you have any questions at the present time of either of our witnesses today?

Senator DIRKSEN. I was going to ask both Senator Hennings and Senator Bricker how they regard the Girard case in the light of the language contained in section 1 of the proposal that is before us.

Senator HENNINGS. Of course, there are a number of facets, as my colleague from Illinois well knows, in the Girard case, one being a question of fact, at least one, as to whether Sergeant Girard was indeed on active duty at the time of this tragedy. The Army had apparently decided that he was on active duty and had taken jurisdiction in the case.

Judge McGarraghy

Senator KEFAUVER. I think his opinion should also be made a part of the record.

(The document referred to follows:)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

H. C. 47-75

William S. Girard, United States Army Specialist 3/C, Petitioner, v. Charles E. Wilson, Secretary of Defense; John Foster Dulles, Secretary of State; Wilbur M. Brucker, Secretary of the Army; General Maxwell D. Taylor, Head Joint Chiefs of Staff, Department of Defense; Major General W. H. Maglin, Provost Marshal General, United States Army; General Lyman Lemnitzer, Commanding General, Far East Command, Respondents

OPINION

This is a Petition for a Writ of Habeas Corpus and for other relief, filed by William S. Girard, United States Army Specialist Third Class, against the Secretary of Defense and others, in which he alleges that on or about January 30, 1957, he was arrested and thereafter held in confinement by the military authorities of the United States and is presently held in such confinement for the purpose of being delivered to the Government of Japan for trial for an alleged offense over which that Government has no jurisdiction, nor does it have jurisdiction over the person of the petitioner. He further alleges that his detention is illegal and in violation of the Constitution and laws of the United States, as well as the treaty rights and obligations of the Government of the United States, and that the reasons for his detention and proposed delivery to the Japanese Government are invalid in law and in violation of fundamental constitutional and legal rights of petitioner.

The petitioner is a Specialist Third Class in the Regular Army of the United States, assigned to Company F, 8th Cavalry Regiment, at Camp Whittington, Honshu, Japan, having reenlisted while in Japan on October 28, 1954, for a period of three years.

On January 30, 1957, an incident occurred while the petitioner was on a firing range known as Camp Weir Range in Japan, resulting in the death of a Japanese woman for which the American military authorities propose to deliver petitioner to the Japanese Government for trial.

The incident is succinctly described in the certificate of the petitioners' commanding officer dated February 7, 1957, from which the following is quoted:

66 ** I certify that GIRARD, William S. RA 16 452 809, Specialist Third Class, Company F, 8th Cavalry Regiment, APO 201, was in the performance of his official duty at 1350 hours, 30 January 1957, Camp Weir Range Area, when he was involved in the following incident: On 30 January 1957, 2nd Battalion, 8th Cavalry Regiment, was engaged in routine training at Camp Weir Range Area. Company F was conducting blank firing exercises. Specialist Third Class William S. GIRARD was instructed by his platoon leader to move near a position near an unguarded machine gun to guard the machine gun and items of field equipment that were in the immediate area. GIRARD, following instructions, moved to the designated position near the machine gun. While performing his duties as guard, he fired an expended cartridge case, as a warning, which struck and killed SAKAI, Naka, Kami-Shinden, Somamura, Gumma Prefecture, who had entered the range area for the purpose of gathering expended cartridge cases."

This certificate has never been withdrawn or modified in any respect.

The Security Treaty between the United States of America and Japan which entered into force on April 28, 1952, provided by Article III thereof that:

"The conditions which shall govern the disposition of armed forces of the United States of America in and about Japan shall be determined by administrative agreements between the two Governments."

Article XVII of the Administrative Agreement subsequently entered into between the Governments of the United States of America and Japan, defines the offenses of which the countries have concurrent jurisdiction and exclusive jurisdiction, respectively.

Paragraph 3 of Article XVII provides that with respect to cases where the right to exercise jurisdiction is concurrent, the military authorities of the United States shall have the primary right to exercise jurisdiction over the members of the United States armed forces or the civilian component in relation to offenses arising out of any act or omission done in the performance of official duty. [Italic supplied.]

The Agreed Official Minutes regarding this provision in Paragraph 3 provide that where a member of the United States armed forces or the civilian component is charged with an offense, a certificate issued by or on behalf of his commanding officer stating that the alleged offense, if committed by him, arose out of an act or omission done in the performance of official duty, shall, in any judicial proceedings, be sufficient evidence of the fact unless the contrary is proved.

It was pursuant to these Official Minutes that the certificate of the petitioner's commanding officer was issued dated February 7, 1957.

The certificate by the commanding officer which was directed to the Chief Procurator, Maebashi District, Maebashi City, Honshu, Japan, continued by stating: "The United States will exercise jurisdiction in this case unless notification is given immediately that proof to the contrary exists."

Thereafter, on February 9, 1957, the Chief Procurator notified the petitioner's commanding officer with reference to his certificate as to official duty that "This office considers the proof contrary thereto exists, basing upon our examinations."

Following this exchange, there were discussions commencing in early March 1957, by the representatives of the United States and representatives of Japan constituting a Joint United States-Japan Committee. On May 16, 1957, the United States representative on the Committee agreed that the United States would not exercise its asserted right of primary jurisdiction in this case. This action is said to have been taken in accordance with Paragraph 3 (c) of Article XVII of the Administrative Agreement, which reads as follows:

"If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance."

Thereafter, on June 4, 1957, the Secretary of State of the United States and the Secretary of Defense of the United States who are named as two of the defendants in this action, issued a joint statement that they had carefully reviewed all of the available facts in this case, and have not concluded that the agreement that the petitioner be tried in the courts of Japan was reached in full accord with procedures established by the Treaty and Agreement, and that in order to preserve the integrity of the pledges of the United States, this determination by the Joint Committee must be carried out.

This joint statement related the circumstances substantially the same as, but in more detail than, those contained in the certificate by the petitioner's commanding officer. The following is quoted from the joint statement:

*

*

*

*

"The incident occurred in a maneuver area provided by the Japanese Government for part-time use of United States forces. The Japanese Defense Force uses the same area about 40 percent of the time. When the area is not in use by either the United States or Japanese armed forces, Japanese civilians are permitted to farm or otherwise use the area.

"Efforts to keep civilians away from the area during such military exercises have not proved effective. In this particular case, red boundary flags were, as customary, erected as a warning to civilians to keep off, and local authorities were notified of the proposed exercises. But, as was frequently the case, a number of Japanese civilians were in the area gathering empty brass cartridge cases at the time of the incident. These civilians had created such a risk of injury to themselves in the morning exercises when live ammunition was used that the American officer in charge withdrew live ammunition from the troops prior to the afternoon exercises. In the interval between two simulated attacks during the afternoon, Girard and another soldier, Specialist 3rd Class Victor M. Nickel, were ordered by their platoon leader, a Lieutenant, to guard a machine gun and several field jackets at the top of a hill. Girard and Nickel were not issued live ammunition for this duty.

"It was while these soldiers were performing this duty that the incident occurred. Mrs. Naka Sakai, a Japanese civilian, died a few moments after being hit in the back by an empty brass rifle shell case fired by Girard from his rifle grenade launcher. She was not over 30 yards from Girard and was going away from him when he fired the rifle. Girard had previously fired similarly in the vicinity of a Japanese man, who was not hit.