possible one-man rule. Certainly this was never intended. If the treaty power is allowed to remain unrestricted by the control of the Bricker amendment, we have the definite possibility of government by a few. Such was not and could never honestly be stated to be the purpose of our Constitution and Bill of Rights. Our Government was founded by individuals who wanted to eliminate foreverthe possibility of this Nation being ruled by one or a few. The Bricker amendment is essential to the permanent elimination of this danger.

According to an editorial statement appearing in the Chicago American on May 9, 1953, every important foreign country, except France, the Netherlands, and Mexico, has the self-protection against excessive executive action by stipulating that a treaty or other international agreement may be made domestic law only by valid legislation.

We believe the citizens of the United States are entitled to have their liberties protected in a like manner.

Passage of the Bricker amendment by Congress would, of course, be only the first step. Ratification by the States must follow. We believe the people of the States should be given the opportunity to vote upon this matter.

It would not seem unreasonable to point out that the wisdom of the voting public is seldom questioned by those who are elected to public office. We believe those who are able to decide between candidates should be given the opportunity to decide this issue.

The need for our Constitution to be safeguarded by the Bricker amendment is emphasized by the admonition of Thomas Jefferson, who said: "In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution."

CYRUS W. ANDERSON, M. D.

STATEMENT BY DANA C. BACKUS IN OPPOSITION TO SENATE JOINT
RESOLUTION 3-BRICKER AMENDMENT, VERSION OF 1957

The variations from year to year of the wording of the Bricker amendment certainly support the proposition that this is a fluid matter which should not be embalmed in the Constitution.

Early versions were clearly destructive of essential powers of the Republic. In view of the opposition, in some cases the wording has been modified, but explanatory statements and reports make the modified wording even in these cases, an unclear 10,000-word amendment rather than a brief statement of principle.

To the extent that the Bricker amendment takes power away from the United States as a nation and parcels it among the 48 States, it makes difficult or impossible essential action to protect us in this troubled world.

To the extent that the Bricker amendment inhibits the power of the President as Commander in Chief, or in his diplomatic role, it disturbs the balance of power among the three branches of the Government. This disturbance is wholly unjustified and has been opposed both by President Truman and by President Eisenhower.

Our present constitutional provisions, in the treaty field, are essential to our being one Nation. We should not take steps backward in the direction of the Articles of Confederation.

I trust that the Bricker amendment will not receive approval.

THE SUPREME COURT,
Los Angeles, Calif., July 3, 1957.

Hon. ESTES KEFAUVER,

Chairman, Subcommittee on Constitutional Amendments,
Committee on the Judiciary,

Washington, D. C.

DEAR SENATOR KEFAUVER: I am taking the liberty of submitting to you my support of Senate Joint Resolution No. 3 introduced in the Senate January 7, 1957, and consideration of which is now pending before your honorable committee.

I am doing so because I understand that the subcommittee has indicated a willingness to consider the supplemental views of witnesses who supported the amendment in the last Congress. I was one of those ardently supporting the

so-called Bricker amendment, and I would greatly appreciate if my views and opinions herewith enclosed, would be presented by you to the subcommittee. I appreciate your courtesy, and extending to you my kindest personal regards, I remain,

Very sincerely yours,

JOSEPH L. CALL.

STATEMENT OF HON. JOSEPH L. CALL, JUDGE OF THE SUPERIOR COURT, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, IN SUPPORT OF SENATE JOINT RESOLUTION No. 3 OF THE 85TH CONGRESS, TO MEMBERS OF THE SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE

Mr. Chairman, and members of your honorable committee, your honorable committee has indicated that it would welcome the supplemental views of witnesses who supported the Bricker amendment in the last Congress, and that their written statements would be considered in the subcommittee's record of hearings on this proposed amendment. Because of this kindness by the subcommittee I am herewith submitting the following statement in support of Senate Joint Resolution No. 3, introduced in the Senate January 7, 1957.

May I state briefly at the onset that I am a graduate of the University of Southern California School of Law (1925), degree of bachelor of laws. I was admitted to practice law before all of the courts of the State of California, September 1926. I am a member of the Los Angeles Bar Association, the Conference of California Judges, and have presided continuously since 1931 as a judge of the Municipal Court, Los Angeles Judicial District, to January 1957, and, since January of 1957, as a judge of the Superior Court, County of Los Angeles, State of California. In 1945 I was presiding judge of the aforesaid court. I have written rather extensively on the subject of the so-called Bricker amendment, and immediate kindred constitutional subjects, which articles have appeared on occasions in various legal reviews and otherwise throughout the country. I have also publicly lectured and debated the necessity of this proposed amendment.

In my statement to your honorable subcommittee during its hearings in May of 1955, I gave my conclusions at considerable length as to the importance and necessity of this amendment. This report appears in full in the transcript of the hearings before this committee during April and May of 1955, and is reported at length on page 406 thereof. Without reaffirming or reanalyzing all of the matters therein considered, may I, by reference, reaffirm and represent all of those contentions as though fully set forth at length herein.

In addition, may I respectfully call to the attention of your committee the following salient facts:

The conclusions of the Supreme Court are that the treatymaking power and the power of the President to make Executive agreements is not limited by the Constitution or by laws made pursuant thereto, and that treaties and Executive agreements are the supreme law of the land irrespective of constitutional grants or restrictions of power. This statement is substantiated by the following cases: U. S. v. Curtiss-Wright Corporation (299 U. S. 304 (1936)), Valentine v. U. S. (299 U. S. 5 (1936)), U. S. v. Belmont (301 U. S. 324 (1937)), U. S. v. Pink (315 U. S. 203 (1924).

From these holdings it is therefore apparent that:

(2) The legislative powers of the Federal Government are subordinate to any treaty duly executed, or to any executive agreement executed by the President, whether with the approval of Congress or not.

(b) That by reason thereof such treaty or such executive agreement becomes the law of the land. Under this principle the Federal Government no longer operates under a written constitution but under a government of executive power. It constitutes a government of decree and not of law.

The Government of the United States is rapidly approaching the crossroads where the decision must be made whether this Republic is to continue as a government of delegated powers, as contemplated and provided for in the Constitution, or a government of unlimited power operating without constitutional restriction or limitation such as has in effect been demonstrated through construction and interpolation in the case of Helvering v. Davis (301 U. S. 619 (1939)) and Stewart v. Davis (301 U. S. 549 (1937)). The fight for the Bricker amendment is a fight for constitutional solvency and for the supremacy of the Constitution.

It may be pointed out that in the recent case of Reid v. Covert (U. S. Sup. Ct., June 10, 1957), in which the Supreme Court speaks through a minority finding of

four Justices, there was a statement made that would indicate a reversal or reappraisal of the principles of constitutional government. In the Covert case the Court said:

"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 can be no question but that this statement of the Court expresses true constitutional principles and the true canons of the construction of the fundamental law. While this statement of the Court cannot possibly be reconciled with the conclusions reached in the Pink, Belmont, or Curtiss-Wright cases, they are entirely dictum unnecessary to a proper determination of the Covert case and cannot possibly be considered as the law of the case. The only conclusion that can be drawn is that they are injected into the case with the purpose of proving that constitutional restraints on treaty power and executive agreements are now unnecessary.

However, rather than prove the lack of necessity for the Bricker amendment, this statement clearly demonstrates its absolute necessity to preserve constitutional government. It shows again that at the whim and caprice of the Court the fundamental law and fixed constitutional principles may be changed, and, many times, by the alternate vote of one member of the Court.

In 1717 Benjamin Hoadley, in an immortal sermon preached before the King of England, analyzed a similar comparable situation in the following language: "For whosoever hath an absolute authority to interpret any written or spoken law, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them."

And it is for this reason that while the President and Congress are both subject to the writteng Constitution, the Supreme Court is over the Constitution. And it is for this reason that constitutional mandates on the question of treaty powers and executive agreements are indispensable to the preservation of constitutional government in the United States.

In conclusion may I respectfully point out that this Government is not founded on the trust of public officials, but upon distrust of such officials, and hence a government of written delegated powers, restrictions, checks, and counterbalances. It is trust and a lack of limitation on those in power that throughout history has led to the creation of dictatorship and totalitarian government. For instance, it was Caesar who demanded trust and confidence of the Roman Senate in 45 B. C. and as a result was given the decree of power of a perpetual dictatorship. This decree was followed by a repudiation of the last vestiges of the constitutional government, and political corruption was reduced to a science. It was as a champion of the people and one in whom complete trust could reside that constitutional government was destroyed. The Republic concluded and totalitarianism enshrined.

For the aforesaid reasons your petitioner respectfully concludes that the adoption of Senate Joint Resolution 3 as an amendment to the United States Constitution is fundamentally necessary for the maintenance of constitutional government of the United States.

SUPPLEMENTAL STATEMENT BY EBERHARD P. DEUTSCH OF THE NEW ORLEANS BAR ON SENATE JOINT RESOLUTION 3, 85TH CONGRESS

As the committee is aware, I am a member of the American Bar Association's standing committee on peace and law through United Nations. I have appeared before this committee in behalf of prior joint resolutions introduced by Senator Bricker and others in the past; and I ask that my statements and testimony be treated as reiterated in this record.

I am entirely satisfied that the need for constitutional limitation on the effect of treaties and other international agreements has not abated; but, on the contrary, has grown more acute as a result of developments on the international

scene.

A recent opinion (Reid v. Covert, June 10, 1957) by the Supreme Court of the United States does not detract from the stated need, but emphasizes it.

The opinion of Mr. Justice Black in that case disregards entirely the conclusion of Mr. Justice Holmes in Missouri v. Holland that “it is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention," a conclusion drawn by the learned Justice from the distinction between the constitutional provisions requiring statutes to be enacted "in pursuance of" the Constitution, while treaties are declared to be valid if made "under the authority of the United States."

Mr. Justice Black's opinion in Reid v. Covert further disregarded entirely the earlier holding of the Supreme Court, by clear implication, in Pink v. Fleming, to the effect that the fifth amendment was impotent as to an executive agreement dealing with matters of international concern.

Further, quite remarkably, in his opinion in Reid v. Covert, Mr. Justice Black also disregarded the holding of the Supreme Court in United States v. Curtis Wright Export Corporation, to the effect that the powers of the Federal Government are not limited, in the conduct of its foreign affairs, by the powers expressly delegated to it in the Constitution.

It should be noted also in this connection, that Reid v. Covert dealt with a narrow state of facts in criminal prosecutions, and Mr. Justice Black stated expressly that in Missouri v. Holland, "the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution,” thus limiting the holding in Reid v. Covert to narrow bounds, and leaving the broad holding in Missouri v. Holland entirely undisturbed.

Finally, it must be remembered that even Reid v. Covert did not involve a majority holding on the effect of treaties. Only three other judges concurred in Mr. Justice Black's opinion. The other judges were sharply divided; and the case itself represents a narrow reversal, on rehearing, of prior contrary opinions rendered by the Court itself in the same cases during the immediately preceding term.

It is accordingly respectfully submitted that the need for the constitutional amendment proposed in Senate Joint Resolution 3, now under consideration by this committee, has not abated; and that it should be reported favorably and pressed for early passage and prompt ratification.

All of which is respectfully submitted.

Mr. WAYNE SMITHEY,

Senate Judiciary Committee,

Washington, D. C.

PATTERSON, BELKNAP & WEBB,
New York, N. Y., July 8, 1957.

DEAR MR. SMITHEY: Thank you for your letter of June 25 inquiring whether I wish to supplement my previous testimony on the so-called Bricker proposals. Since I appeared before your Subcommittee on Constitutional Amendments, the committee on Federal legislation and international law of the Association of the Bar of the City of New York have issued 2 reports, 1 with respect to the substitute for Senate Joint Resolution 1 (84th Cong.) as reported by the Senate Judiciary Committee on March 27, 1956 and another with respect to Senate Joint Resolution 3 (85th Cong.). The latter report of the two committees of the bar association is entitled "Report on the 1957 Bricker Amendment" and is dated May 1, 1957. A copy of that report is enclosed herewith and 16 copies are being sent to you under separate cover.

I respectfully request that the enclosed report be submitted for inclusion in the printed record of the hearings on Senate Joint Resolution 3 as representing not only my views but the views of the commitees on Federal legislation and international law of the Association of the Bar of the City of New York. We are opposed to the proposed amendment which would radically alter the constituional scheme by increasing the power of Congress at the expense of the President and by increasing the power of the States at the expense of the Federal Government. (The report referred to was submitted for inclusion in the record by Hon. Thomas C. Hennings, Jr., and is to be read on p. 380 of the appendix.)

At page 7 of our report we point out that a treaty must deal with matters "properly the subject of negotiation with a foreign country" and that the validity of the reservation to the treaty concerning the Niagara River, or 99860-58-30

possibly the entire treaty, would depend upon whether the reservation dealt with a matter which is properly the subject of negotiation with a foreign country. Since our report was written the United States Court of Appeals for the District of Columbia has ruled on the validity of the reservation and the treaty, and both the majority and minority opinions in the case recognized this principle although coming to different views on the application of the principle. (New York Power Authority v. Federal Power Commission; decided June 20, 1957.) A recent case in the United States Supreme Court (Reid v. Kinsella, 25 U. S. Law Week 4444-June 10, 1957) has discussed the doctrine that a treaty or an executive agreement cannot do what the Constitution forbids. Specifically four of the Justices agreed that an executive agreement cannot override the Bill of Rights. They declared that an executive agreement cannot in times of peace deprive civilian dependents of American servicemen abroad of the right to be tried by jury for capital offenses as provided by article III, section 2, and the fifth and sixth amendments of the Constitution. Mr. Justice Black in the majority opinion went into great detail in regard to that right. Three other Justices concurred in the opinion. Two other Justices concurred in the result. The two dissenting Justices pointed out that the case was not concerned with the legal relationship between treaties and the Constitution and that Congress had the constitutional power to provide for the trial of civilian dependents of American servicemen abroad as part of the right to deal with the military under the Constitution. None of the Justices therefore were contending that the treatymaking power is superior to the Bill of Rights. This case therefore adds another authority to the authorities cited in our report on this point.

If action on the Bricker proposals are to be pressed at this time by your committee, it would seem that a further opportunity should be given witnesses to appear in person before the subcommitee and set forth their views. Should the subcommittee so determine at this time or later, I respectfully request an opportunity to appear before the subcommittee. Respectfully submitted.

JOHN V. DUNCAN.

STATEMENT OF JEFFERSON B. FORDHAM OF PHILADELPHIA, PA., WITH RESPECT TO SENATE JOINT RESOLUTION 3, 85TH CONGRESS, 1ST SESSION

I am grateful for the opportunity to make this statement for the record on Senate Joint Resolution 3, the 1957 version of the so-called Bricker resolution. I am distressed, however, that it continues to be necessary to expend time and effort in defending the Constitution and the full sovereignty of the United States in international affairs against the negative philosophy of escape and withdrawal. I say with utmost emphasis that efforts to protect us from this or that real or imagined mistake or even abuse of power in the conduct of the National Government by further limitation of national power are selfdefeating. The way to prevent feared abuse of power in foreign affairs is not to cut down the power itself and thereby limit our freedom of action in a highly interdependent world. America should depend upon enlightened and responsible use of her strength, not upon the enervating spirit of withdrawal. Today as in 1955 the proponents of further treaty power limitation have utterly failed to make a case. Two things make the weakness of the position all the clearer at this time. (a) The course of international affairs and the military aspects of scientific developments increase the need of effective international cooperation; today the most pressing problems of the social order are those of the international community. At stake is the survival of the human family. (b) The Supreme Court of the United States has recently reiterated in a strong dictum that which has been clear enough all along, namely, that the treaty power is subordinate to the Constitution. Said the Court, in Reid v. Covert (25 L. W. 4444 (decided June 11, 1957)): "Article VI, the supremacy clause of the Constitution, declares :

"This Constitution, and the Laws of the United States which shall be made in Pursuant 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.