ment, as then phrased, before a subcommittee of the Senate Committee on the Judiciary. Again on May 10, 1955, I testified before the same committee with respect to Senator Bricker's proposed amendment.

My testimony on both these occasions was based upon my personal experience in, and observations of, the International Labor Organization.

I see no need on the present occasion to restate what I said in my testimony. The facts presented, and my opinions on the subject, remain the same. I, therefore, respectfully refer the present committee to my testimony given on those two previous occasions. I desire here merely to add further corroborative facts.

My concern, very simply stated, is that as the Constitution stands now a small number of Senators constituting those present at the time a treaty is under consideration might, by ratifying a treaty, impose upon this country legislation having to do with internal domestic affairs, bypassing the legislative processes supposedly guaranteed us under the Constitution.

The main object of the ILO is that of formulating drafts of basic laws which, if ratified by member nations, stand as treaties among the nations which ratify them. This means that if the United States of America ratifies an ILO convention, it is morally bound to see to it that that convention is put into effect in the United States.

For some reason which I cannot understand, most people seem to be unaware of the fact that the ILO, over a long period of years, has consistently been passing conventions which have to do not with international affairs affecting labor, but with internal domestic affairs of individual nations.

The International Labor Organization has enacted 104 conventions. Out of these only 42 have had to do with matters appropriate for international consideration. Sixty-two have dealt with internal domestic affairs of member nations.

This will give you some idea of the possible impact of conventions, subject to ratification as treaties, which by two-thirds approval of only those Senators present when they are voted on, might reshape domestic law within the United States.

You may say that it is most unlikely that the Senate would ratify as treaties laws drafted by the representatives of over 70 foreign nations, which would alter domestic law within the United States. In my opinion it is unwise to make such assumption. The reason is apparent in the record of the ILO.

It is true that since the United States joined the ILO our country has ratified only 7 ILO conventions. But, since our Government joined the ILO in 1934, it has voted in favor of 54 ILO conventions.

This means that ever since we have been members of the ILO our Government has officially supported the great majority of the conventions under consideration by the ILO. The only reason that more of these conventions have not been ratified has been because the Senate has been reluctant to go along with the official stand taken with respect to them by the executive branch of the Government.

Do we have, at the present time, any protection against the possibility that at some future date the executive branch of the Government might have a sufficient following in the Senate to push through ratification of ILO conventions, by the device of getting a sufficient number of "yes" votes among the Senators present when the subject comes up for consideration?

Any such possibility would mean that the United States of America had forfeited its right of self-government. It would mean that the House of Representatives had been bypassed completely. It would mean that we in this country, instead of preserving our right to make our own laws in our own way, had permitted a combination of foreign powers to draft for us laws affecting our lives and our citizens with respect to our own internal domestic affairs. Perhaps you may not realize the ambitions of the ILO in this direction. In order to comprehend the intents and purposes of this body it is necessary to review the subjects with which it has concerned itself, not only with respect to the conventions which it has enacted, but also with respect to the recommendations and resolutions which it has passed.

The ILO has long since ceased to confine itself to matters dealing with labor proper. Instead it has ventured into fields far beyond its orignial scope, and apparently has ambitions to become a world parliament as to social and economic affairs.

The ILO has, for example, concerned itself with the following:

Government takeover of employment agencies

Government regulation of markets, prices, production, distribution and employment

Establishment of nationalized industries

Conceivably the ILO could enact conventions on all of these subjects. Conceivably such conventions could be ratified by a two-thirds vote of merely those Senators present on the day the subject was discussed. Conceivably, by that means, representative government in our United States could be destroyed, the function of the House of Representatives could be relegated to a secondary position, and legislation as to social and economic matters affecting our internal domestic affairs would be determined by the representatives of over 70 nations sitting in Geneva.

The ILO has a habit of enacting, as a recommendation or resolution, a seemingly harmless document which, in later years (the precedent having been established) it will sharpen into a convention. An example is a recommendation with respect to vocational training in agriculture, which it enacted at its June 1955 Conference.

This was a blueprint for government education and training of young workers in agriculture. It stated that in each country the "public authorities" should organize agricultural education of young people into a systematic and coordinated program. It provided for standardized curriculums in rural primary schools, and stated that the "competent authority" (namely government) should "elaborate progressively" with respect to instructional material and textbooks, qualifications of teachers, examination requirements, etc. It provided that a government agricultural apprenticeship system should be set up, and that government authorities should make available financial contributions to carry the program into effect.

Without going into detail, this constituted a pattern for government takeover of agriculture, and government indoctrination, along political lines, of all young people on the farms. This is the Communist pattern; this is the Socialist pattern; I cite it as an example of the intent of the Socialist-Communist majority in control of the International Labor Organization today.

And yet the people representing the executive branch of our Government voted in favor of this proposal, and have been consistently voting in favor of other ILO proposals based upon similar premises. If at some future date we should get a Senate majority subservient to the executive branch of the Government, do we have, as the Constitution stands now, any protection against Senate ratification of socialistic ILO proposals supported by the executive branch?

I insist we need such protection. I insist, first of all, that decisions on such matters should not be left merely in the hands of the Senators present on the day upon which the vote is taken; and second, I insist that the House of Representatives as well as the Senate should always have their proper place in the enactment of laws having to do with internal domestic affairs.

I do not pretend to be a lawyer or to understand all the constitutional implications involved in this whole matter. I am here merely setting forth certain conclusions arrived at as a result of my experience in the International Labor Organization.

AMERICAN BAR ASSOCIATION-REPORT OF STANDING COMMITTEE ON PEACE AND LAW THROUGH UNITED NATIONS

I. TREATIES AND EXECUTIVE AGREEMENTS

On January 7, 1957 (Congressional Record of that date, pp. 259–260), Senator John W. Bricker introduced (as S. J. Res. 3 of the 85th Cong.) the following text of a proposed constitutional amendment on treaties and executive agreements.

"SECTION 1. 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.

"SEC. 2. 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 shall provide affirmatively, in its resolution advising and consenting to a treaty, that the treaty shall have legislative effect.

"SEC. 3. An international agreement other than a treaty shall have legislative effect within the United States as a law thereof only through legislation valid in the absence of such an international agreement.

"SEC. 4. On the question of advising and consenting to a treaty, the vote shall be determined by yeas and nays, and the names of the Senators voting for and against shall be entered on the Journal of the Senate."

Senator Bricker's short explanation in the Record of the meaning and intent of the foregoing text was set forth in an appendix to the February 1, 1957, report of your committee.

At the time of introduction, Senate Joint Resolution 3 was referred to the United States Senate Committee on the Judiciary. No action has been taken up to the present time. At the time of the preparation of this report a short hearing limited largely to text was announced on Senate Joint Resolution 3 to supplement the elaborate hearings on treaties and executive agreements previously held by the Senate Judiciary Committee in 1952 (540 pages), 1953 (1,267 pages), and 1955 (1,016 pages). The subcommittee of the Judiciary had as of June 25, 1957, heard testimony of Senator Hennings (Missouri) against the text and Senator Bricker (Ohio) for the text. Written statements by interested persons have been invited by the subcommittee.

The most significant development in this, for many years, highly debated area is the decision of the United States Supreme Court in Reid v. Covert and the companion case Kinsella v. Krueger, June 10, 1957, involving the constitutionality of court-martial proceedings against civilian wives of overseas United States servicemen. The Court overruled its decision of June 11, 1956, and held that Congress could not constitutionally subject these American civilian wives overseas to court-martial jurisdiction in capital cases in time of peace. Moreover, the Government's effort to sustain court-martial jurisdiction under an executive agreement between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents was firmly rejected in the opinion of Mr. Justice Black, joined in by three other justices (Chief Justice Warren, and Justices Douglas and Brennan), in the following language:

"Even though a court-martial does not give an accused trial by jury and other Bill of Rights' protections, the Government contends that section 2 (11) of the UCMJ, insofar as its authorizes the military trial of dependents accompanying the Armed Forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that 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; ***

99860-58-28

"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. These debates as well as the history that surrounds the adoption of the treaty provision in article VI make it clear that the reason treaties were not limited to those made in 'pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. 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. For example, in Geofroy v. Riggs (133 U. S. 258, 267), it declared: “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.'

"This Court has also repeatedly taken the position that an act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

"There is nothing in Missouri v. Holland (252 U. S. 416), which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the 10th amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the 10th amendment is no barrier.

"In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. Covert."

For the proposition that the Court has regularly recognized the supremacy of the Constitution over a treaty, the four judges further cited United States v. Minnesota (270 U. S. 181, 207–208); Holden v. Joy (17 Wall 211, 242–243); The Cherokee Tobacco (11 Wall 616, 620-621); Dae v. Braden (16 Howard 635, 657), and made reference to Marbury v. Madison (Cranch 137, 176–180), containing Chief Justice Marshall's famous statement on the Federal Government as one of limited powers whose legislative acts not conforming to the Constitution are void. The four justices then said in a footnote, "We recognize that executive agreements are involved here but it cannot be contended that such an agreement rises to higher stature than a treaty." The four judges do not cite the even stronger statement from New Orleans v. United States (10 Pet. 662, 736), that "Congress cannot by legislation enlarge the Federal jurisdiction, nor can it be enlarged under the treatymaking power."

The statement of Mr. Justice Black that "there is nothing in Missouri v. Holland (252 U. S. 416), which is contrary to the position taken here," must be taken with reservations. He does not comment directly on the much debated language of Mr. Justice Holmes in that case, as follows (p. 433):

"Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while threaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the Un tes means more than the formal acts prescribed to

make the Conver

The foregoing language of Mr. Justice Holmes caused Mr. Chief Justice Hughes to say before the American Society of International Law in 1929: "The treaty power is a power that has no explicit limitation attached to it. I should not care to voice any opinion as to an implied limitation on the treatymaking power. The Supreme Court has expressed a doubt whether there could be any such ***."

Mr. Justice Holmes' quoted language has been similarly construed by many others, including your committee, and by both proponents and opponents of the Bricker amendment. Courts and others have also expressed doubts as to the power of courts to declare treaties void and unenforceable. (See your committee's report, Feb. 1, 1952.)

Mr. Justice Black does not advert to U. S. v. Curtiss-Wright Export Corporation (299 U. S. 304), in which Mr. Justice Sutherland broadly referred to the treaty power as an inherent power even if it had never been mentioned in the Constitution, although Missouri v. Holland had clearly recognized it as an expressly delegated power.

The two cases just referred to caused your committee to say in its February 1, 1952, report, in recommending consideration of a constitutional amendment that would give unequivocal constitutional effect to early judicial dicta that a treaty in conflict with the Constitution is void (a view now supported explicitly by four of the present justices):

"Inferences drawn by some persons from Missouri v. Holland (252 U. S. 416), and U. S. v. Curtiss-Wright Corporation (299 U. S. 304,, 316-319), that the treaty power is unlimited in any field of international concern, must in such an amendment be unqualifiedly negatived, and any doubt on this score be forever set at rest. See also United States v. Pink (315 U. S. 203, 233–4).”

(See also report of your committee, Sept. 1, 1952, p. 9.)

Nor does Mr. Justice Black advert to United States v. Pink (315 U. S. 203) (written by Mr. Justice Douglas, and concurred in by Justices Black, Murphy, Byrnes, and Frankfurter, over the strong dissent of Chief Justice Stone and Justice Roberts, with Justices Reed and Jackson not participating), which did squarely involve an executive agreement with Russia, and which held that an executive agreement made by the President alone, without the approval of the Senate, is, like a treaty, the supreme law of the land and overrides the fifth amendment, as well as the law of New York. This holding caused Dr. Philip Jessup to say in 36 American Journal of International Law, 282:

"From the point of view of our constitutional law, the decision may well mark one of the most far-reaching inroads upon the protection which it was supposed the fifth amendment accorded to private property."

(See discussion of the Pink case by your committee in its Mar. 1, 1954, report, pp. 25-27.)

Mr. Justice Black, in the recent Army Wives case, while not discussing Mr. Justice Holmes' quoted language from Missouri v. Holland directly, does properly refute the latter's "in pursuance" argument, by pointing out that historically the "in pursuance" language would also have been used as to treaties except for the necessity of embracing preconstitutional treaties; and that the same intent nevertheless existed that treaties, as well as statutes, must be made "pursuant to" the Constitution.

Mr. Justice Black distinguishes Missouri v. Holland on the ground that "the treaty involved was not inconsistent with any specific provision of the Constitution." To this it could be countered that the Constitution did forbid congressional control over migratory birds in the sense that direct legislative power over migratory was not delegated in the Constitution, as had been held by the lower Federal courts under a prior congressional act. But it was held, in substance, that the express grant of the treaty power in the Constitution has no specific limitations attached to it, and, therefore, the Federal Government has delegated treaty power over all matters of genuine international concern; that migratory birds fall in that category; and that, therefore, the treaty, plus implementing congressional legislation under the "necessary and proper" clause, are valid unless contrary to prohibitory words of the Constitution, apart from the 10th amendment, which merely says that what has not been delegated is reserved, and thus adds nothing new U. S. v. Sprague (282 U. S. 716, 733). And, according to Missouri v. Holland, this is true even though, pursuant to the treaty, Congress passes implementing legislation that would be invalid, absent the treaty; the legislation is valid if the treaty is valid in that it does not transgress any of the constitutional prohibitions. The Federal legislative power is thus enlarged, because the treaty deals with a proper international subject matter,