LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, Hon. ESTES KEFAUVER, Chairman, Constitutional Amendments Subcommittee, Washington, D. C. DEAR SENATOR KEFAUVER: The League of Women Voters, after intensive study by the membership, first opposed the Bricker amendment in 1954. In reaching a policy decision, the league gave the following five reasons for its opposition: 1. The power of the National Government to conduct foreign relations must be maintained as provided in the Constitution. The Bricker amendment would deprive the National Government of its full power to carry out treaty obligations in important areas of national policy and would leave to the States the choice of implementation. 2. The constitutional system of checks and balances between the executive and legislative branches of the National Government must be safeguarded. The Bricker amendment would alter the traditional concept of the balance of power by removing functions from the Executive and transferring them to the Congress. It is essential that the President retain his authority to fulfill his constitutional responsibility to act in times of national emergency as well as in the day-to-day conduct of foreign affairs. 3. The negotiation and ratification of treaties should not be made more cumbersome. The Bricker amendment would hamper our present treaty making procedure, already surrounded by constitutional and legislative safeguards, by adding steps which would cast doubt on the ability and willingness of the United States to carry out its international obligations. 4. The interests of the United States are best served by a foreign policy based on the principle of international cooperation. The Bricker amendment would impair this principle. It is based on fears that the United Nations Charter and other international agreements could invade our constitutionally protected individual and States rights. The League of Women Voters does not share this fear. 5. The Constitution should be amended only when need is clearly shown. This need has not been established. Today these reasons for opposition apply to the latest version of the Bricker amendment, Senate Joint Resolution 3. Senator Bricker has publicly stated that, although his wording has changed, his intent remains the same. In our opinion, this is no time to curb the leadership of the United States in its efforts to seek the peace we all want. Sincerely yours, Mrs. JOHN G. LEE, President. LONG ISLAND GENERAL ASSEMBLY, June 29, 1957. Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, Senate Office Building, Washington, D. C. DEAR MR. CHAIRMAN: We respectfully request that the resolution of the Long Island General Assembly, Fourth Degree (Patriotic), Knights of Columbus, Brooklyn, N. Y., in support of the principles of the proposed Bricker amendment to our Federal Constitution, adopted February 23, 1957, which was forwarded to your committee on March 14, 1957, be made a part of the record of the recently held hearings of the Subcommittee on Constitutional Amendments. Sincerely yours, JAMES F. MORGAN, Navigator. H. JOSEPH MAHONEY, Chairman, Civic Affairs Committee. UNIVERSITY OF MINNESOTA, Mr. WAYNE SMITHEY, COLLEGE OF SCIENCE, LITERATURE, AND THE ARTS, Member, Professional Staff, Senate Judiciary Committee, Senate Office Building, Washington, D. C. DEAR MR. SMITHEY: The attached statement, supplementary to the comments which I made in 1955 upon the proposed Bricker amendment, is submitted for inclusion in the record in accordance with your suggestion of June 25. I have addressed the statement to Senator Kefauver as chairman of the subcommittee but am sending it to you, as I assume from your letter you are collecting the statements for printing. If I am incorrect in this and should have sent it directly to Senator Kefauver, I shall appreciate your handing it to him. I hope that it may reach you in time to meet your deadline. Unfortunately, I have been absent from the city for 2 weeks and did not see your letter until July 5, so that I have prepared the statement under considerable pressure. Very sincerely yours, CHARLES H. MCLAUGHLIN, Director, Center for International Relations and Area Studies. MINNESOTA COMMITTEE OPPOSING THE BRICKER AMENDMENT, Minneapolis, Minn., July 6, 1957. Senator ESTES KEFAUVER, Chairman, Subcommittee on Constitutional Amendments, DEAR SENATOR KEFAUVER: I am glad to take advantage of the invitation of the subcommittee, conveyed to me by Mr. Wayne Smithey, to supplement my statement of April 29, 1955, made on behalf of the Minnesota Committee Opposing the Bricker Amendment, with some comments upon the current form of Senator Bricker's proposal contained in Senate Joint Resolution 3, 85th Congress, 1st session. My comments refer to the numbered sections of the article proposed as an amendment to the Constitution in Senate Joint Resolution 3. "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." I believe no one would object to the principle formulated in this section. The only issues are whether there is any need to add such a statement to the Constitution and, if so, how it should be formulated. Upon the first point I continue to feel that it is not necessary to amend the Constitution in this way because the statement merely expresses a principle considered by the courts to be embodied in the existing supremacy clause (art. VI, clause 2). The Supreme Court has never taken the position asserted by Senator Bricker, that it is possible under the wording of that clause for a treat. inconsistent with the Constitution to become part of the law of the land if concluded according to the constitutionally prescribed procedures. On the contrary, the Court has uniformly stated that treaties violative of either express or implied prohibitions of the Constitution, or concerned with purely local as opposed to international issues, must be held void. Since I attempted to develop these points fully, with citation of cases, in my earlier statement (1955 hearings, pp. 103-105, 114–115), I shall not repeat those observations here. It may be worth while, however, to consider briefly the suggestion made upon that occasion in questions put to me by Senator Everett M. Dirksen, that recent cases have not followed the views expressed earlier by the Supreme Court (1955 hearings, pp. 109-110). The only foundation for this suggestion seems to be an inference drawn from the silence of the Court upon certain arguments presented in recent cases. One example has been the effort to secure a ruling by the Court upon the question whether the human-rights provisions of the United Nations Charter have become a part of the law of the land—i. e., either as a self-executing treaty or as a binding declaration of foreign policy-in such a way as to invalidate inconsistent local legislation or private acts. It may be noted in passing that the California Supreme Court ruled in Sei Fujii v. the State of California (1952, 38 Calif. (2d) 718, 242 P. (2d) 617), that the charter was not a self-executing treaty as to these provisions, and its reasoning closely followed Supreme Court decisions upon the criteria for distinguishing self-executing and non-self-execut ing treaties. Similar results have been reached in other cases in State courts (see Sipes v. McGhee, 1947, 316 Mich. 614; Kemp v. Rubin, 1947, 69 N. Y. S. (2d) 680), but the United States Supreme Court has not been equally explicit. When the applicability of the United Nations Charter was urged in the restrictive covenants cases in a brief submitted by attorneys for the United Nations Association, appearing amicus curiae, the Supreme Court chose to rest its judgment wholly upon the effect of the equal-protection clause of the Constitution without commenting upon the argument of the brief (Shelley v. Kraemer, 1948, 334 U. S. 1). In Rice v. Sioux City Memorial Park Cemetery, Inc., et al., the argument upon the applicability of the charter had been presented to the Iowa courts but dismissed as irrelevant; the opinion were confined to the question whether under the ruling in Shelley v. Kraemer the courts could permit an unenforceable restrictive covenant to be raised as a defense (1954, 245 Iowa 147, 60 N. W. (2d) 110). Upon removal by certiorari to the United States Supreme Court, its members divided evenly, and the Iowa judgment was therefore affirmed by a per curiam decision in a memorandum opinion (1954, 348 U. S. 880) which affords no insight into the Court's views. On petition for rehearing the Court vacated the per curiam decision and dismissed the certiorari as improvidently granted in that an Iowa statute had already been enacted which barred such restrictive covenants and the case was therefore not one of general interest (1955, 349 U. S. 70). Whatever one may think of this reasoning, it takes no account of the possible effect of the United Nations Charter. Upon that point the only contribution of the Court was this rather oblique comment by Mr. Justice Frankfurter (349 U. S. 73): ** The Iowa courts dismissed summarily the claim that some of the general and hortatory language of this treaty [i. e., the UN Charter], which so far as the United States is concerned, is itself an exercise of the treatymaking power under the Constitution, constituted a limitation on the rights of the States and of persons otherwise reserved to them under the Constitution. It is a redundancy to add that there is, of course, no basis for any inference that the division of this Court reflected any diversity of opinion on this question." In the context this clearly means that the members of the Court did not intend to express any disagreement with the Iowa court's position upon this point. Although the remark is in no sense an affirmative ruling it stands as a clear warning against the sort of inference Senator Dirksen sought to draw from the per curiam decision. Reference may be made also to the Court's avoidance of the question of the effect of a statute upon a later inconsistent executive agreement, presented in United States v. Guy W. Capps, Inc. In the circuit court of appeals, Chief Judge Parker examined this issue in a very useful manner (204 F. 2d) 655 [4th Cir. 1953]). But when the case came to the Supreme Court upon certiorari, that tribunal concluded that the evidence did not show a violation of the private contract between the parties upon which the suit had been based, and therefore found it unnecessary to consider whether the executive agreement invoked by the contract was void because in conflict with a statute. It merely remarked that “* * * there is no occasion for us to consider the other questions discussed by the court of appeals. The decision in this case does not rest upon them" (348 U. S. 296, 1955). It would certainly have been a source of gratification if in the midst of the perplexities aroused by Senator Bricker's proposals the Supreme Court had felt called upon to pronounce clearly upon such issues. But the Court is certainly entitled to its view of the issues presented by cases before it and in general does well to refrain from comment upon extraneous issues which are not relevant to its decisions. We are certainly not entitled to assume that its silence upon irrelevant points is intended to suggest any doubt of the continuing validity of earlier decisions upon these points. The contrary is the only permissible assumption. I conclude that there is no evidence of a withdrawal from positions which the Court has taken upon the constitutionality of treaties, that its construction of the supremacy clause already embodies the principle restated in section 1 of Senate Joint Resolution 3, and that section 1 would therefore be surplusage which would accomplish no new result. Although there seems to be no logical or practical reason for amending the Constitution in this way, Senator Bricker's indefatigable efforts to do so have inevitably led many people to suppose that there must be some defect requiring correction. It may therefore be argued that it would be politically wise to quiet doubts by reaffirming the existing principle that treaties inconsistent with the Constitution are void. Although I do not share this view, I am prepared to admit that such a restatement of the present rule might without harm be added to the Constitution provided it is so carefully stated as to avoid any misinterpretation. From this point of view only I shall examine the language proposed in section 1. It may be thought an improvement upon previous versions in that it uses the words employed with respect to statutes in the supremacy clause. Consequently, it might be expected to evoke judicial constructions following the cases on unconstitutional statutes--a reasonably predictable course. The status of treaties concluded before the present Constitution came into force is also protected by the last clause. In all probability section 1 would be taken by the courts as substantially a restatement of the positions already taken by the Supreme Court in interpreting the supremacy clause. Nevertheless, the section is drafted in the form of a new requirement and, therefore, has the disadvantage of suggesting that a different rule may have prevailed earlier. Thus, it could be argued, if any such amendment were adopted, that before its adoption treaties had only only to be made under authority of the United States, whereas after its adoption they must be made not only under authority of the United States but also in pursuance of the Constitution, and, therefore, that these two requirements must mean different things. Such a conclusion would be an unwarranted reflection upon the character of earlier treaties, especially in view of judicial construction of the supremacy clause. It was with this in view that I suggested in my statement in 1955 (1955 hearings, p. 115) that the least bad form of amendment might be: "Nothing in article VI, section 2, of this Constitution shall be construed to give any legal force or effect to treaties or other international agreements which are inconsistent with this Constitution." This has at least the merit that it does not add to or modify the supremacy clause; it merely states an authoritative interpretation of it. As that interpretation coincides with the Supreme Court's construction of the supremacy clause no misunderstanding about earlier treaties would arise. "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." The effect of the proposed section 2 would be to make all treaties and executive agreements non-self-executing (i. e., they would not become effective within the United States until put into effect by statute) unless the Senate affirmatively provided otherwise when consenting to ratification. This may be contrasted with the present situation in which the terms of the treaty are determinative of the question whether it is to be considered self-executing or non-self-executing. Since the leading case of Foster v. Neilsen (1829, 2 Pet. (27 U. S.) 253, 7 L. Ed. 415) our courts have regularly made the distinction, holding that a treaty may be self-executing, so that it can be carried out directly by executive and administrative officers without legislative implementation provided its terms show clearly that this was intended and also contain sufficiently precise standards of performance to render legislative implementation superfluous. In general the courts have been rather chary of holding treaties to be self-executing (see, for example, Robertson v. General Electric Co. (U. S. Cir. Ct. of Appeals 1929; 32 F. (2d) 495; Taylor v. Morton (U. S. Cir. Ct. 1855; 23 Fed. Cas. 784, No. 13,799, 2 Curtis 454; also Sipes v. McGhee, Kempt v. Rubin, Sei Fujii v. State of California, Shelley v. Kraemer, Rice v. Sioux City Memorial Park Cemetery, cited above), yet the self-executing treaty is certainly a possibility. However, it has always been within the power of the Senate to refuse its consent to ratification until the language of the treaty is put into a form which makes the treaty clearly non-self-executing. Thus there exists no possibility even now that the executive can bypass the Senate upon this point. One principal difficulty which the proposed section presents is at the international level. If the self-executing character of a treaty in this country could be known not from its terms but only from a later stipulation by the Senate, the parties would have to negotiate with reference to a set of obligations the mode of execution of which remained uncertain-a point which might sometimes be an important element of the bargain. It appears to me sounder to have the whole bargain apparent in the terms of the treaty. If the Senate objects to that bargain either as to substantive obligations or mode of execution it can and should withhold consent to ratification until changes are made, which would compel the executive either to reopen negotiations or to drop the matter. Thus no misunderstanding of the intent or effect of the treaty could occur at the international level. Upon this point, therefore, the present arrangement seems more satisfactory than the proposed one, and seems equally well to safeguard the interest of the Senate in treaties. Nor does there appear to be any reason in our domestic polity for so restrictive a rule on treaties as that suggested. If all treaties were made non-selfexecuting, this would simply mean they would have to be put into effect within the United States by statutes. But if the Senate had consented to ratification by the required two-thirds vote there should be little difficulty in securing the majority vote needed for implementing legislation. In some few cases there might be an opinion in the House of Representatives hostile to a treaty favored by two-thirds of the Senate, but this would hardly happen when the same political party controlled the executive and House of Representatives. Thus the utility of the proposal as a protective device seems slight or uncertain at best; yet the complications and delays of enacting statutes would have in every case to be added to the delays (sometimes great) in obtaining the Senate's consent to ratification. What purpose is served in an already overburdened Congress by thus compounding difficulties? The effect of the proposed section upon executive agreements is a separate question. There is not at present any requirement of Senate consent to ratification of these; in a formal sense they are all self-executing agreements resting upon executive authority. Nevertheless, such a statement is misleading because a very large proportion of them are made either to carry out a prior legislative authorization (e. g., reciprocal trade agreements, agreements for technical assistance, economic aid agreements, international postal conventions), or to implement in detail a policy agreed upon by treaty (e. g., air-transport agreements supplementary to the International Civil Aviation convention signed at Chicago in 1944, military-assistance agreements with NATO and SEATO countries). In such cases there has been consideration and approval of the policy either by the whole Congress or by the Senate, which seems to make further legislative consideration superfluous, not to mention the fact that consideration of the masses of administrative detail included in many of these agreements would sadly tax congressional time. In other cases executive agreements which were not authorized in advance by Congress have received congressional consideration and approval by subsequent resolution or the provision of appropriations to implement them. With respect to none of these categories of executive agreements, which probably amount to 90 percent or more of the whole number concluded, does there appear to be any compelling reason to employ such a device as section 2 proposes. Of course there remains a small category of executive agreements which really are made solely upon executive authority. Admittedly, these present a difficult problem and could be a source of danger in the event of executive irresponsibility. It is possible that they should be subjected to some limitations, but a satisfactory type of limitation is difficult to devise. It must be remembered that this category includes important military and other security agreements. It is not clear to me how we could properly subject a wartime executive agreement, for example, one affecting the disposition of allied forces or decisions as to strategy, to a requirement of legislative implementation to put it into effect in this country. In such cases speed and secrecy may be essential to national safety. It seems to me curious that in his drafting Senator Bricker continues to ignore this difficulty although it has been forcefully stated by responsible Government officers, including the President, the Secretary of State, and the Attorney General, and by many private persons in statements made to the subcommittee. If it be accepted that some further regulation of executive agreements can be justified, it is nevertheless clear that section 2 is an extremely inappropriate device for that purpose. "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." This is a debatable proposal apparently intended to deprive executive agreements of any domestic legal effect unless put into effect by legislation which can be enacted by the National Government within the range of powers delegated to it by the Constitution. I say this because of the words “* * * legislative effect within the United States as a law thereof * * *.” Presumably a law of the United States means a law of the Federal Government, which therefore could not be enacted by State legislation. If congressional legislation is required to give effect to the executive agreement, and this legislation must |