this proposed amendment, it should adopt it anyway and leave the ultimate decision to the general public. We submit that it would be a most grievous abdication of responsibility if the Senate adopted any constitutional amendment without assuring itself that the amendment was absolutely necessary and satisfying itself that, it knew, within reasonable bounds, what legal results could be expected to flow from it. SUMMARY As stated above, it is thought that either the proposed amendment means nothing or it means much too much. In either case it has no business in the Constitution. It is impossible to tell from the text of the amendment whether it is intended to mean nothing or something, or, if the latter, what the something is. If the amendment is adopted, its meaning will depend on what interpretation is given it by the courts. In making their decision, the courts will be handicapped by a fragmentary and confusing legislative history. Years of litigation will be necessary before we can know for certain how much of the treaty power remains in the Constitution as written in 1789. If the proposed amendment is intended to do no more than declare the existing state of the law, then we are opposed to its adoption. The safeguards which have protected us from abuse in the past will serve as adequate safeguards in the future. The Constitution should not be cluttered up with unnecessary provisions. Furthermore, the Supreme Court might very well assign meaning to a vague provision which the Congress thought to be meaningless. There is a presumption against "amendments" which do not amend. It is impossible to tell what meaning and effect the proposal would have if adopted. It might be given much too much meaning and effect. This is especially true of the "three little words"; i. e., "any provision of." They may be another "which clause" in sheep's clothing. They might be interpreted as overturning the important holding in Missouri v. Holland. They might cause the invalidation of whole series of our most vital treaties. On its face the proposed amendment would seem to be retroactive. Would it not then possibly invalidate many treaties in existence today? Wouldn't there be among these many treaties which have been overwhelmingly approved in the last few years by many of the same Senators who favor the idea of some sort of an amendment? The amendment would appear to introduce into constituional law a new, and possibly disastrous, doctrine of separability. Treaties would presumably be measured, not against the Constitution as a whole, but against each and every provision, taken out of context. Executive agreements would be given a new constitutional dignity— with unknown results. The views of neither the administration nor other constitutional experts have been obtained before proceeding headlong with the approval of a newly worded amendment which might have the gravest consequences upon the future of our country. We cannot end our views better than by quoting a paragraph from a recent editorial (March 7, 1956) in the Washington Post and Times Herald: The mere fact that no one knows what the Dirksen amendment means is a powerful argument against it. Ite vice is much greater, however, than mere vagueness. Linked as it is with the more explicit Bricker amendments of recent memory, it stands as a grave threat to the solidarity of the free world and to our national security. It is a camouflaged maneuver designed to undermine American leadership in international affairs. The administration and the Congress can no more agree to impose this sort of paralysis than they could consent to dismantle our defense. The undersigned respectfully urges the Senate of the United States to reject the proposed constitutional amendment (S. J. Res. 1) as reported out by the Committee on the Judiciary. The Constitution is better without it. ESTES KEFAUVER. APRIL 11 (legislative day, APRIL 9), 1956.-Ordered to be printed Mr. HENNINGS, from the Committee on the Judiciary, submitted the following INDIVIDUAL VIEWS [To accompany S. J. Res. 1] I am opposed to the adoption of the Dirksen substitute amendment to the Constitution of the United States to place additional limitations on the power of the President to make treaties and other international agreements. Rather than to recapitulate the well-known objections to this or any other version of the Bricker amendment, I shall direct my remarks to the principal points discussed in the majority report— which I had not seen prior to its issuance. The proponents of the Dirksen amendment have not made plain, either in the majority report or in their public statements, what the Dirksen amendment will or will not do. They have even failed to assure the country in explicit terms that under the Dirksen amendment the Supreme Court's vital decision in the case of Missouri v. Holland will not be trampled under foot. The confusion about this amendment was emphasized by President Eisenhower at his press conference on April 4 (a month after the substitute was first made public) when he indicated that he and his advisers were in doubt as to the meaning of the proposed amendment and that he would never agree to any diminution of the Executive's authority to construct and get before Congress the kind of treaties. that will serve our country's best interest. The President was obviously expressing his reluctance to any constitutional amendment which would weaken, even through inadvertence, the constitutional powers of the President to preserve the Nation. Sound public policy is surely at war with amending the Constitution unless the purpose and effect of the amendment are clear. The Dirksen amendment is not clear. This is sufficient reason for not adopting it. 80 The crucial provision of the amendment is as follows: A provision of a treaty or other international agreement The three italicized words look as though they do not change the sense at all, but as interpreted by the majority report they will produce remarkable results. The majority report is a mass of quotations and arguments, but it can be boiled down to three main subjects-two truisms and a power play. (1) The first truism is that treaties cannot conflict with the Constitution. The report elaborately documents the truth of this first proposition and concludes on this point (p. 6): In plain words this section is designed to make it inescap- However, for this simple proposition the "three little words" are unnecessary. Without them, as the report takes pains to point out (p. 7), the text is identical with that of the substitute submitted by Senators Ferguson, Knowland, and others during the 1954 debate. That text was proposed as purely declaratory, i. e., as intended merely to restate the existing law and not to make any change in the Constitution. The Ferguson-Knowland substitute was considered inadequate by the proponents of the Bricker amendment then, and with the "three little words" omitted, the Dirksen substitute would, of course, be considered inadequate by them today. They want more. They would never have kept on coming up with one new text after another if all they wanted was only a constitutional declaration that "is intended only to state what most of the American people have always felt should be the law" (p. 6). The proposition that treaties and executive agreements cannot conflict with the Constitution and remain valid needs no establishment, either by committee reports or by constitutional amendment. It is not the real issue at all. (2) The second truism is that treaties can cover only subjects that properly pertain to foreign relations. The report elaborately documents the truth of this second proposition. In fact, it would be hard to write a better brief on this point than the report's dozen quotations-which run from James Madison through half a dozen Supreme Court decisions to the present Secretary of State and Attorney General (pp. 11-13). The report gives not one citation to the contrary; the verdict is unanimous. The report concludes this discussion by saying it is desirable to incorporate such a concept in the Constitution, and that the proposed amendment would accomplish this result For, as far as the committee is concerned, a treaty or other cern But this line of argument is nonsense. In the first place, the concept that agreements must deal with matters of genuine international concern is already incorporated in the Constitution, as the report's documentation unequivocally shows. Second, if the concept is not already in the Constitution, the "three little words" cannot be reasonably interpreted as supplying it. Third-if we can somehow swallow all this-what is the "provision" of the Constitution on which the report relies to accomplish this desired result? The only one mentioned so far as treaties are concerned is the 10th amendment (p. 11). But if in the future some treaty were made covering a subject which did not properly pertain to foreign relations, it would fail as being a fraud on the treaty power under the well-recognized doctrine that the report documents. The 10th amendment would not accomplish the result, and it neither increases nor decreases the powers that the rest of the Constitution delegates to the United States: it merely specifies the States and the people as those to whom are reserved all powers not thus delegated. And, of course, the treaty power is delegated to the United States to be exercised by the President by and with the advice and consent of the Senate. Furthermore, the Constitution grants certain exclusive powers to the President alone, including his diplomatic powers and his powers as Commander in Chief. (3) The power play consists of demoting the President as leader in foreign affairs. Here the amendment changes character,if we must accept the interpretation put upon it by the report, and the same words that were advanced as truisms now serve as a power play. The report makes plain that the amendment is intended to overrule the Supreme Court's decision in the Pink case. In addition With respect to agreements concluded by the President In other words, the amendment seems to be designed to be at least as drastic as the George substitute defeated at the culmination of the 1954 debate (which provided that an executive agreement shall become effective as internal law in the United States only by an act of Congress). Isn't it more drastic in the sense that it incorporates a "which" clause at least as to executive agreements? To effect this curtailment of the Nation's leader in foreign affairs, the report relies on the "three little words." Insofar as subordinating the President to State law is concerned, the report again invokes the 10th amendment, ignoring the fact that the President's powers in the field of foreign affairs are delegated to him by the Constitution, as I have already pointed out. The report seeks to attach significance to the fact that the power to conclude executive agreements is nowhere "mentioned" in the Constitution (p. 17), overlooking the fact that the signing of an executive agreement by the President derives its sanction from the powers that the Constitution confers on the President. This derivative power has been specifically recognized and confirmed by the Supreme Court in a number of decisions. (See |