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"all legislative powers hereby granted shall be vested in" the Congress. Consequently, section 2 of the pending resolution would amend section 1 of article I, notwithstanding the fact that some treaties have been ratified with only 2 or 3 Senators on the floor and voting. I think I may say without fear of successful contradiction that the people of the United States and the legislatures of the several States would not favor this left-handed transfer of legislative power.

sary.

(4) Section 3 of the pending draft would give legislative effect to an unratified executive agreement if followed by “legislation valid in the absence of such an international agreement." I question whether such a provision is at all necesIf the President shall have made such an executive agreement relating to a matter within the scope of congressional power, it could be given legislative effect by an act of Congress without any amendment of the Constitution. If such an agreement related to matters within the exclusive domain of the States (as in the case of United States v. Pink, 315 U. S. 203), legislative effect could be given thereto by State legislation, likewise without any amendment of the Constitution. To me it appears that the real problem is to define a treaty in such a way as to distinguish it from these unratified executive agreements or other international compacts. It would seem that can be better done otherwise. (5) Section 4 of the pending resolution seems to me to be adequate, unless it should contain a requirement that at the time of voting on the ratification of a treaty a rollcall should demonstrate that there are on the floor at least a majority of all the Members of the Senate. Such a requirement would seem by no means improper, as the ratification of a solemn international agreement is a serious matter which should demand that the validity of the ratification should depend upon the presence of a quorum.

(6) With all deference, therefore, to Senator Bricker and the distinguished people who have spoken and written on the pending and prior versions of the so-called Bricker amendment, I suggest a resolution, the effective portion of which might read substantially as follows:

"The second paragraph of article VI of the Constitution is hereby amended to read as follows:

""This Constitution and, subject thereto, the laws and treaties of the United States, made or which shall be made in pursuance thereof, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. However, no international agreement shall be deemed a treaty under this Constitution unless it shall have been advised and consented to by the Senate, two-thirds of the Senators present concurring, and a majority of all the Senators present and voting, nor unless the vote thereon shall be determined by yeas and nays, the names of the Senators voting for and against advising and consenting thereto being entered on the Journal of the Senate. This paragraph shall not apply to treaties made by the United States prior to the 14th day of September 1788.'" Such language would place treaties, from the standpoint of constitutional validity, on precisely the same plane as acts of Congress; would make it plain that no treaty could be deemed a part of the supreme law of the land unless it had been ratified by the Senate, and would dispose of questions such as were involved in the Pink case. It would have the merit of preserving as much as possible of the wording now contained in the second paragraph of article VI, and would make it perfectly plain, even to the uninitiated, that treaties as well as statutes to be valid must conform to the Constitution.

As was stated by Senator Bricker to your committee on June 25, 1957, it seems urgent, in order to preserve our constitutional rights, that some such resolution should be passed out of your committee and submitted by the Congress to the States. The Status of Forces Treaties and the treaty with Japan which now involves a young man named Girard, and the recent decision by a minority of the Supreme Court in the Covert and Krueger cases, point up the urgency of the situation. To say that a young man like Girard can be picked up under a conscription act and sent to some country where he would be deprived of all his constitutional rights, and tried in a language he does not understand and under a system or jurisprudence wholly foreign to our people, or that the President and a potentate of some foreign government, with or without the concurrence of the Senate, may strip our sovereign States of powers they have always held under the Constitution, should be enough to produce action by our Congress. Yours very truly,

R. H. KELLEY.

President since such a limitation would disable the President from acting decisively and effectively in the national interest as the occasion might require. The foregoing remarks are the expression of my views as an individual. I am pleased at this juncture to speak for the Committee for Defense of the Constitution by Preserving the Treaty Power in submitting the attached Statement of Position on the Bricker Amendment (1957) and in asking that this statement be included in the printed record of hearings on Senate Joint Resolution 3. In the same capacity, I submit herewith a copy of The Bricker Amendment Views of Deans and Professors of Law, published in January 1957 and request that this publication be included in the printed record of hearings on Senate Joint Resolution 3. As indicated in the introduction of that publication, the views expressed therein are, in the main, expressions of constitutional philosophy equally applicable to the basic proposals of the Bricker amendment irrespective of form. They are, thus, highly pertinent even though expressed prior to the introduction of Senate Joint Resolution 3.

(The report, The Bricker Amendment Views of Deans and Professors of Law, was submitted for inclusion in the appendix of the hearing by Hon. Thomas C. Hennings, Jr., and may be read starting on p. 205 of the appendix.)

COMMITTEE FOR DEFENSE OF THE CONSTITUTION BY PRESERVING THE TREATY POWERSTATEMENT OF POSITION ON THE BRICKER AMENDMENT (1957)

We continue to oppose amending the Constitution as proposed by the so-called Bricker amendment, in its latest version as well as in its numerous earlier forms.1 All of the substance of the present proposal, and most of its words, come from various provisions offered in the Senate 3 years ago; after a 5-week debate and 7 votes, all were then defeated. More clearly than last year's version, it seeks to impose a dangerous limitation on the President and the Federal power to deal effectively with foreign nations.

The retroactive ambiguity.—The amendment would invalidate a provision of a treaty or other international agreement not made "in pursuance" of the Constitution. No one can be sure what these words mean or what they would do. This provision may be merely a superfluous restatement of existing law, but the fact that it is explicitly made retroactive suggests that it is intended to do much more: It opens the door for attacking past treaties. Senator Bricker does not say which or how many of our presenly valid and lawful treaties and executive agreements would suddenly become unconstitutional under his amendment. Presumably only future litigation would answer such practical and vital questions.

Enlarging the "graveyard of treaties."-Another section would deny legislative effect to treaties unless the Senate affirmatively so provides. Though this would not shrink the Nation's treaty power, it would make our treaty procedure even more cumbersome.

The attack on the Executive.-The only acknowledged "which clause" in the present proposal is with reference to executive agreements. The amendment provides that an executive agreement "shall have legislative effect within the United States as a law thereof only through legislation valid in the absence of such" an agreement. This provision would throw a cloud on the Nation's Executive when he deals with foreign countries under powers which the Constitution vests in him alone-such as his diplomatic powers and powers as Commander in Chief. Furthermore, under this "which clause," part of an executive agreement's effectiveness would be subordinate to State laws and could not even be supplied by an act of Congress. From quite a different point of view, this provision would tend to encourage the use of executive agreements in lieu of treaties, because it would give explicit constitutional standing to any international agreement which was approved by an ordinary majority vote of the Senate and House. All things considered, we believe the situation in the field of executive agreements is better under the Constitution as it stands than under any of the amendments yet proposed-all of which would create more problems than they would solve.

1 The latest version, introduced January 7, 1957, is Senate Joint Resolution 3. The last previous version was the Dirksen substitute, on its face the most watered down of the many proposals, it was reported out in March 1956 by a majority of the Senate Judiciary Committee, but died with the last Congress, undebated.

Writing Senate rules in the Constitution.—The final section would rollcall votes on treaties. Such a requirement might well be an improvement in the Senate rules, but certainly does not belong in the Constitution.

Bad policy. The present and all prior versions of the Bricker amendment bear the same stamp-the fewer international agreements the better, so ent down the President's powers to make them, and becloud their legality. In our whole history there has never been a worse time to pursue such a course. War has become annihilation. The future peace and welfare of our people (or of any people) lies in reaching agreement in their relations with others. To obstruct our own path for reaching such agreements is folly.

SENATE COMMITTEE ON THE JUDICIARY,

ITHACA, N. Y., July 1, 1957.

Senate Office Building, Washington, D. C. GENTLEMEN: Thank you for your opportunity given me to supplement my testimony as to the Bricker amendment. I have not changed my views since my testimony. The new draft does not cure my objections.

(1) The provisions as presently contained in the Constitution are adequate concerning the ratification of treaties and their effect as part of the law of the land. Section 1 of the new resolution seems redundant.

(2) I do not believe that it is true that the American people wish to give the Senate any additional powers to police the executive and judicial branches of the Government. Most recently it has been Congress, rather than the courts or the Executive, who seem to distrust the ability of the American people to choose wisely. There is little doubt from every poll conducted and by the general public tone that Americans desire their country to play an international roll of peace and that attempts to curtail UNESCO and like organizations is not in harmony with American public opinion.

(3) Any amendment couched in very general language holds its dangers in application to material not now intended. The present Constitution has been shaped by court interpretation and long established usage. We, the people, and particularly the lawyers advising people, know approximately the limits of power and are satisfied as they are so stated.

(4) Inadequate distinction is made between various forms of international action. No attempt is made to restrict military agreements, which are the most threatening form to a government based on the theory that civilian control over the military shall be preserved.

(5) Not every international action should depend upon local statutes for its fullfillment. The present amendment is too broad.

For these and other reasons heretofore given, I oppose adoption of Senate Journal Resolution 3, January 7, 1957.

Respectfully yours,

HARROP A. FREEMAN.

HOUSTON, TEX., June 28, 1957.

Re Senate Joint Resolution 3

HON. ESTES KEFAUVER,

Chairman, Subcommittee on Constitutional Amendments of the Senate Judiciary Committee, Washington, D. C.

DEAR SENATOR: In connection with the resolution mentioned above, offered by Senator Bricker, I will appreciate it if you will introduce this letter into the record being made by your subcommittee.

I have read the resolution mentioned above, the statement made to your committee on January 25, 1957, by Senator Bricker, and a statement made or sent to your committee on the same matter by Hon. Robert B. Dresser, of Providence, R. I. I have also read the former versions of this proposed amendment previously introduced by Senator Bricker and considered by the Judiciary Committee of the Senate during hearings held in the 82d, 83d, and 84th Congresses.

In general I agree with the statement submitted by Mr. Dresser. In my opinion the resolution now pending before your committee, introduced by Senator Bricker during the present session of the Congress, should not be reported favorably as it is now framed, but it should be revised substantially in accordance with the 1955 version of a resolution proposed for the same purpose.

The reasons for my views, except insofar as they have already been stated by Mr. Dresser, are as follows:

(1) Reference has frequently been made to the distinction made between acts of Congress and treaties in the second paragraph of article VI of the Constitution. There reference is made to "the laws of the United States which shall be made in pursuance" of the Constitution, and “treaties made or which shall be made under the authority of the United States." This difference in the language made applicable to statutes and treaties, respectively, was obviously due to the fact (a) that there could be no acts of Congress until the Constitution had been adopted and, therefore, the reference to such acts of Congress had to be made prospectively; on the other hand (b) there had been treaties made, including the treaty of peace made with Great Britain after the end of the Revolution, and it was deemed in the best interests of the United States to maintain those treaties in force and, therefore, reference was made to treaties "made and to be made" (retrospective as well as prospective), for plainly a treaty such as the treaty of peace with Great Britain had not been made in pursuance of the Constitution then proposed for adoption. William Rawle was a distinguished Philadelphia lawyer. Born in 1759 and died in 1836. As was pointed out somewhat more than 2 years ago by Hon. Samuel B. Pettengill, Rawle was 30 years of age when the Constitution was adopted and was, therefore, a contemporary of the authors of the Constitution. He lived in Philadelphia all his life; was appointed district attorney of Pennsylvania by President Washington, was counsel of the United States Bank, a trustee of the University of Pennsylvania, and president of the Historical Society of Pennsylvania. He published a book called A View of the Constitution of the United States of America. The second edition of this work was published in Philadelphia in 1829 by Phillip H. Nicklin, of Philadelphia. On pages 66 and 67 of that edition of the book the following appears:

"There is a variance in the words descriptive of laws and those of treaties— in the former it is said those which shall be made in pursuance of the Constitution, but treaties are described as having been made, or which shall be made under the authority of the United States.

"The explanation is, that at the time of adopting the Constitution, certain treaties existed, which had been made by Congress under the confederation (with France, the United Netherlands, and particularly the treaty of peace with Great Britain), the continuing obligations of which it was proper to declare. The words 'under the authority of the United States,' were considered as extending equally to those previously made, and to those which should subsequently be effected. But although the former could not be considered as made pursuant to a Constitution which was not then in existence, the latter would not be 'under the authority of the United States,' unless they are conformable to its Constitution."

Mr. Justice Holmes, when he wrote the opinion of the Court in Missouri v. Holland (252 U. S. 416), made no reference to this publication, but ignored the very language of the Constitution which referred prospectively only to acts of Congress and both retrospectively and prospectively to treaties.

(2) Section 1 of the resolution by Senator Bricker now pending before your committee invalidates only such provisions of a treaty as may not be made pursuant to the Constitution. The recognized doctrine respecting the invalidity under the Constitution of an act of Congress is that (a) no unconstitutional provision of the statute may stand, and (b) that the entire statute must fall if it should be concluded that the statute would not have been passed without the invalid provisions. The latter part of this doctrine is not incorporated in section 1 of the pending resolution, which states that only the invalid provision shall fall. Thus, even though a court might hold that the invalid provision constituted the heart and core of a treaty, it might nevertheless feel impelled to decide that the balance of the treaty must stand. Consequently, in my opinion it would be much better to use, with respect to treaties, precisely the same language as has always been used with respect to acts of Congress, merely adding that the amendment shall not apply to treaties made prior to the effective date of the Constitution. As a matter of fact, that date was September 13, 1788, when the Continental Congress adopted a resolution to put the Constitution into operation. I doubt that any treaties were approved by the Continental Congress after that date.

(3) By section 2 of the pending resolution it is plainly proposed to give legislative power to the President, in combination with (a) some foreign government and (b) the Senate. Section 1 of article I of the Constitution states flatly that

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