A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect.

Section 1 of Senate Joint Resolution 130 provides, in part, that no treaty shall be made abridging or prohibiting the free exercise of rights protected by the Constitution."

I do not see how anyone can object to this portion of my amendment or to the first sentence of the American Bar Association proposal except possibly on the ground that no amendment is necessary. The basis of the "no necessity" argument is that the Supreme Court would not uphold any treaty provision which authorized what the Constitution forbids. In the interest of saving time, I will leave the demolition of this argument to the bar-association witnesses.

Section 1 of my amendment, you will note, goes considerably further than the American Bar Association proposal in limiting the scope of the treaty power. On this point, the pertinent language of section 1 of Senate Joint Resolution 130 is as follows:

no treaty

*

* shall be made respecting the rights of citizens of the United States protected by this Constitution

*

This language is intended to withdraw from the reach of the treaty power matters essentially within the domestic jurisdiction. It repudiates the position of the State Department that—

there is no longer any real distinction between "domestic" and "foreign" affairs (State Department Publication 3972, Foreign Affairs Policy Series 26 (1950)).

That statement has been reiterated not only upon the floor but in public addresses by the representatives of the State Department, as the Senator well knows.

It repudiates the underlying theory of the Human Rights Covenant expressed in these words of Ambassador Philip C. Jessup-and Mr. Jessup has been the subject of controversy in the United States Senate from time to time, as the chairman well knows:

It should be repeated that the treatment by a state of its citizens is no longer a matter which, under article 2, paragraph 7 of the Charter, is "essentially within the domestic jurisdiction" (Jessup, A Modern Law of Nations (1947), p. 87).

The problem we face here is best defined by Judge Florence E. Allen in her recently published book The Treaty as an Instrument of Legislation.

Judge Allen is a member of the United States circuit court of appeals from my State, and served on the supreme court of our State for many years, and is one of the most respected and very able judges I believe on the Federal bench at the present time.

The source of the difficulty

says Judge Allen—

is the lack of demarcation between the use of the treaty for international matters and its use for legislation on matters of domestic concern.

The American Bar Association, Judge Allen, and I agree that such a line of demarcation should be drawn in a constitutional amendment. The solutions we offer vary considerably. Since this is the heart of the problem which confronts you, I urge you to give each of the three recommended solutions the most careful study.

I might say I appreciate the interest of the subcommittee, Mr. Chairman, that has been appointed, as well as the interest of the members of the Judiciary Committee, from its chairman on through in this matter. I have full confidence in the membership of that committee, both in regard to its patriotism and its integrity and also its ability.

Judge Allen suggests that the Constitution could be amended to provide in substance that

Any treaty which directly and substantially interferes with the domestic jurisdiction is invalid except where the subject matter presents a truly international problem which requires international action to handle it (Allen, The Treaty as an Instrument of Legislation (1952) p. 105).

The American Bar Association would draw the line between domestic and international legislation to correspond with the line dividing Federal and State powers. It would not prevent any treaty from becoming effective which involved matters traditionally regarded as domestic in character, provided that the subject (1) did not fall within the jurisdiction of the several States and (2) did not conflict with any provision of the Constitution. The constitutional division between Federal and State power is so drawn under current judicial interpretation that I question whether the American Bar Association proposal goes far enough.

My observation has been that the powers of the several States are protected to a far greater extent by Congress' refusal to exercise its full constitutional power than they are by the Supreme Court's interpretation of the tenth amendment.

The effect of section 1 of Senate Joint Resolution 130 can best be illustrated in connection with various articles of the proposed Human Rights Covenant. Article 1 (1) provides that the rights recognized in the covenant shall be respected without distinction as to "political or other opinion." No one denies that a treaty supersedes all prior inconsistent legislation. Article 1 (1) might repeal a substantial part of the McCarran Internal Security Act. In my judgment, no other nation or group of nations has any legitimate interest in what rights we extend or fail to extend to those who seek to undermine our form of government.

One of the most vicious articles in the draft covenant is article 2 (1). It provides that during any emergency proclaimed by the authorities a state may take measures derogating from certain rights enumerated in the covenant. These include the prohibition against forced or compulsory labor; the prohibition against arbitrary arrest and detention; the right to a public trial; the right to have legal assistance, freedom of speech, and of the press; the right of peaceful assembly; the right of association; and many others. All these rights, mind you, are subject to derogation during any emergency proclaimed by the authorities.

You must remember that we have been living in a state of emergency about 3 out of 4 years for the past 15 years, real, synthetic, "proclaimed," or otherwise.

This is what the State Department calls a "great humanitarian treaty." Now, I don't condemn the Human Rights Commission for not producing a document as noble as our own Constitution. It was impossible to do so. My point is that the constitutional rights of the American people are not appropriate subjects for treaty negotiation.

In commenting on section 1 of my proposed amendment the State Department has suggested that it would prevent the United States from entering into a treaty outlawing the slave trade and slavery. No American has any constitutional right to engage in the slave trade. A treaty aimed at suppressing traffic in slaves is certainly not a treaty "respecting the rights of citizens of the United States protected by this Constitution."

However, the idea that the United States should not be prohibited from participating in a treaty outlawing slavery, having no connection with the slave trade, must be examined in the light of article 5 of the draft covenant.

The first paragraph of article 5 contains a flat prohibition against slavery. However, the succeeding paragraphs provide a series of exceptions so that the end result is to sanction slavery. For example, it is provided in the final sentence of article 5 that "work or service which forms part of normal civil obligations" shall not be deemed to be forced or compulsory labor. Disregarding the effect of such a provision on domestic law, it is immoral to legalize the oppression of people in other lands who look to us for moral leadership.

One of the principal arguments employed by defenders of the draft covenant is that it sets a minimum standard of freedom without impairing any higher national standard. I submit that the Constitution of the United States establishes a minimum standard. The freedoms recognized therein are inseparable. Any lower standard is an open invitation to tyranny.

There is another reason why treaties should not be made respecting the constitutional rights of the American people even though the language of the treaty is identical with the wording of the Constitution. The word "slavery," as used in the thirteenth amendment, has a clear, predictable meaning in our courts. It does not have the same meaning all over the world. For example, millions of Communists and Socialists contend that the capitalistic system enslaves the workers.

Is this the sort of question we want to have decided by an international tribunal? A minority in this country insist that the TaftHartley Act is a slave labor law. Is there any reason why domestic legislation enacted by the free representatives of a free people should conform to international standards? Imagine what a propaganda feast Communists here and abroad would have if they could bring charges of slave labor against the United States before the proposed Human Rights Committee. I think Judge Allen is absolutely right when she points out that the resulting dissension and strife would create such a strong reaction against all forms of international cooperation that the peace of the world would be imperiled.

Lynching, like slavery, is abhorred by all decent men. But it is a domestic, not an international crime.

Neither the United States nor any of its citizens should be made defendants in any international proceeding conducted in whole or in part by Communists and their fellow travelers. Either through Federal action, or State action, or both, we have the means to punish this heinous crime.

I realize that the proposed Human Rights Covenant is technically outside the jurisdiction of this subcommittee. I have cited certain provisions of the draft covenant only to illustrate the nature of the

danger which section 1 of my amendment is designed to prevent. There are many other dangerous provisions in the draft covenant and other proposed treaties equally as dangerous. These matters I will leave to succeeding witnesses. However, I do want to mention the freedom of the press provisions in article 14 of the draft covenant.

Paragraph 3 of article 14 authorizes undefined penalties, liabilities, and restrictions to be imposed on the press in vaguely defined circum

stances.

Whatever the degree of protection accorded to the press in articles 14 and 18 may be withdrawn during national emergencies pursuant to article 2. According to Professor Chafee, who had a hand in drafting this provision, a specific prohibition against government censorship of the press contained in an earlier draft was eliminated and

this action was supported by officials in Washington. (See Chafee, Legal Problems of Information, 14 Law and Contemp. Prof. 545, 576.)

What he means by "officials in Washington," I presume is the State Department.

The second paragraph of article 14 reveals the fundamental difference between our concept of liberty and that held by the U. N. majority. Except for those who deny the existence of natural law, everyone will agree that freedom of expression is one of those God-given unalienable rights which no government created, and which no government can either grant or legitimately abolish.

At this point, Mr. Chairman, I would like to point out that Notre Dame University, under the leadership of Dean Manion, has done a remarkable job of research in the field of natural law. I was out there last spring at their conference. I had the privilege of speaking there. I think it would be not only inspiring, but very helpful if Dean Manion could come here and discuss this problem of natural law in its relation. to our concept of human liberty, and in its relationship to the Constitution of the United States.

Senator O'CONOR. I might say he has been invited and the indications are that he will be before the committee during the consideration of the resolution.

Senator BRICKER. I am gratified.

According to Professor Chafee, an earlier draft of article 14 (2) respected this natural law doctrine by providing for freedom of expression "without interference by governmental action." That phrase has since been eliminated so that article 14 (2) now reads in part as follows:

Everyone shall have the right to seek, receive, and impart information and ideas of all kinds regardless of frontiers, either orally, in writing, or in print * or through any other media of his choice.

The difference between granting everyone a right to impart information and providing that government shall not abridge that right is simply the difference between the first amendment and article 125 of the Soviet Constitution. That article purports to guarantee freedom of expression to workers by placing printing presses and other means of communication at their disposal.

I certainly need not explain to you who have done so much to protect the Nation against subversive elements the use Communists and fellow travelers could make of article 14 (2). American newspapers would be forced to print their poisonous propaganda. Under that

language, Paul Robeson and like-minded people could choose school facilities as their media for expression.

I have had some experience, Mr. Chairman, with the efforts of subversive elements in this country trying to pervade the educational institutions and I know some of the difficulty there is in trying to prevent it.

The Communist concept of academic freedom would receive the blessing of the U. N. The right to impart information "regardless of frontiers" might be interpreted so as to obligate Congress to change immigration laws. There is no provision of the draft covenant which better demonstrates the necessity for protecting freedom of the press and other constitutional rights against external regulation and control. Section two of Senate Joint Resolution 130 should be relatively noncontroversial. It is designed to prevent United States participation in world or regional government by treaty or executive gree ment. This section does not create any obstacle to world or regional federation which does not already exist by virtue of the spirit, if not the letter, of the Constitution.

Last night I had the privilege of debating with former Justice Owen Roberts of the Supreme Court on the radio: Town Meeting, I think it was called. It is the one where they ring the bell. Thy have an active organization in Philadelphia and they have them scattered all over the United States plugging for the Atlantic Union, this country and six other countries bordering on the Atlantic Ocean, with provisions for expanding it all over the world. They are in constant conflict, of course, with the World Federalists, who wanted to take all the countries of the world in, including the Communists. However, Justice Roberts and his crowd are frank enough to say that their proposal means an amendment to the Constitution of the United States, and he likewise was very frank in saying that he favored this amend ment to the Constitution, Senate Joint Resolution 130. He thought it was necessary, and he thought there should be no movement such as he supports even, unless it was with the full approval of the people of the United States by a proper constitutional amendment.

To submerge the identity of America in a superstate is a revolutionary step obviously not contemplated in 1789. Responsible spokesmen for the United World Federalists and the Atlantic Union Committee recognize that their goals are revolutionary; that the approval of the American people should be manifested in a constitutional amendment. However, I see nothing in the Constitution which would prevent a massive surrender of sovereignty either by treaty or by simple legislation. Today, Congress has the power to make, to delegate a substantial amount of its legislative authority to the President.

In the judgment of some of us too much of that has been done.

By the same line of reasoning, the Supreme Court might well sustain comparable delegations of authority to an international organization.

Section 3 of Senate Joint Resolution 130, like the second sentence. of the American Bar Association proposal, is designed to make all treaties non-self-executing. The ABA recommendation reads as follows:

A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty.