as a member of the Human Rights Commission, and which has been approved by the General Assembly of the UN. That federal clause is an effort to prevent the UN Covenant on Human Rights from having any self-executing application to local laws. We have heard a great deal of talk about treaties which may run counter to State laws. Whether or not it is ever desirable to do so, and our founding fathers certainly thought that it was important, and on many occasions treaties were ratified which did affect State law, nevertheless if that federal clause remains part of the draft covenant there can be no application to state law, and I would like to read that clause to you. It has two paragraphs. It reads as follows:

In the case of a federal state, the following provisions shall apply: (a) With respect to any articles of this covenant which the federal government regards as wholly or in part appropriate for federal action, the obligations of the federal government shall to this extent be the same as those of parties which are not federal states.

As you know, the United States is a federal state.
Now, clause (b):

In respect of articles which the federal government regards as appropriate under its constitutional system, in whole or in part, for action by the constituent states, provinces, or cantons, the federal government shall bring such provisions with favorable recommendation to the notice of the appropriate authorities of the states, provinces, or cantons at the earliest possible moment.

The purpose of that clause is to make sure that if a covenant is drawn, it shall affect only so-called federal law and the federal government would not therefore be modifying the law of any of the states. Now, as long as that provision remains in the draft covenant, all of this argument about treaties modifying state laws is completely irrelevant.

If those four points are borne in mind, it can be seen that the socalled evils which this resolution are directed to vanish.

I would now like to address myself specifically to each of the three sections with which I am concerned.

I agree with Mr. Tillett that the worst possible offense that a drafter of a constitutional amendment can be guilty of is ambiguity, and when to that is compounded confusion

Senator HENDRICKSON. I will go one step further and say any law. Mr. MASLOW. A law can be changed.

Senator HENDRICKSON. But some of them have been pretty fatal because they were not properly drafted.

Mr. MASLOW. The difficulty with these sections is that they are full of ambiguities, full of provisions which are not clearly defined, which will promote nothing but litigation.

Let us look at the first section, and now I would like to answer Mr. Smithey's question as well. The first section says

No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this constitution, or abridging or prohibiting the free exercise thereof.

What is meant by the term "rights of citizens of the United States protected by this constitution"? To the layman that would seem a very simple question, but we lawyers know that there is hardly any constitutional problem which has aroused so much difficulty as the question, What are the rights protected by this constitution? The real difficulty comes from the fact that the rights protected by the

Constitution are the so-called Federal rights; the right to live is not protected by the Federal Constitution and the Federal Government would lack the authority to pass a statute forbidding murder, because that is a right not guaranteed by the Constitution. The rights protected by the Constitution are those which arise from the Federal nature of our Government.

In the famous case which you may recall known as the Screws case, which involved the Georgia sheriff who had killed a Negro prisoner in his custody, the question arose whether or not he had violated any right of the prisoner, and the Supreme Court split four different ways and confessed it was difficult to decide what was right. They said, moreover, sir, that any criminal statute which uses the term "right of the Constitution" may itself be unconstitutional as being too vague and indefinite. So that we will have a great deal of confusion as long as we use the expression which the Supreme Court itself could not define.

Secondly, if the purpose of section 1 is to prevent any treaty or executive agreement from abridging or protecting the rights of citizens, then it is unnecessary, because that is clearly established and no one has questioned that, that no treaty or executive agreement may abridge or prohibit the rights of citizens protected by the Constitution. If, however, this section means more than that, and apparently it does, because it says "No treaty shall be made respecting the rights of citizens," so that even if we wanted to enlarge the rights of citizens, this section prevents the United States Government from enlarging the rights of its citizens.

May I give an example which I think is not a far-fetched example? Under the Constitution, American citizens have a constitutional right to be protected when they are in foreign countries. It is customary when drawing treaties of commerce and friendship between foreign countries to provide that the aliens of each country are entitled to certain rights, or rather the citizens of each country are entitled to certain privileges and rights when they are traveling in foreign countries. It is a very customary provision in treaties. This section 1 would prevent that kind of a normal conventional treaty provision which expands the rights of American citizens, because it says no treaty shall be made respecting the rights of citizens.

In 1929 and this was before the days of the U. N.-the United States Government entered into a treaty to suppress the traffic in slaves.

Senator HENDRICKSON. Wait just a minute. Let us go back to your last point. You say no treaty or executive agreement shall be made respecting the rights of citizens; therefore the right of a citizen traveling in a foreign country would be altered by that provision.

Mr. MASLOW. If you deal with that right

Senator HENDRICKSON. It would be modified.

Mr. MASLOW. Even if you do not modify it, if you deal with it, you are negotiating a treaty respecting it. If that is what the word

means

Senator HENDRICKSON. You do not read on. You do not say "rights of citizens of the United States protected by this constitution."

Mr. MASLOW. I think that right is protected by this constitution. I would like to read to you one sentence which says so.

Senator HENDRICKSON. I am not trying to quarrel with you. trying to build a record here.

Mr. MASLOW. I understand, sir.

I am

Senator HENDRICKSON. One that will be quite clear to us all when we are finished.

Mr. MASLOW. In the famous Slaughterhouse case, you recall that famous decision decided in 1872, citation 83 United States 36, the Supreme Court held:

It is the privilege of a citizen of the United States to demand the care and protection of the Federal Government when on the high seas or when within the jurisdiction of a foreign government. Of this there can be no doubt or that the right depends on his character as a citizen of the United States.

If it depends on that character it is a constitutional right. And a treaty dealing with that right is a treaty respecting that right, and a treaty respecting that right is forbidden by section 1. Senator HENDRICKSON. You say that is ambiguous.

Mr. MASLOW. It may be that was not the intention of the draftsman. Senator HENDRICKSON. What words would you use to prevent it from being ambiguous?

Mr. MASLOW. I would say, sir, that it is unnecessary, before the courts have clearly held. Once you start putting into the constitution

Senator HENDRICKSON. Why quarrel with its ambiguity if it is unnecessary?

Mr. MASLOW. I will tell you why.

Senator HENDRICKSON. If it is unnecessary, the case ends there, does it not? If it is ambiguous, let us find a way to correct it so it is

not.

Mr. MASLOW. I would say it is clearly unnecessary so far as abridging or prohibiting the free exercise thereof. As far as respecting thereof, there it is undesirable because it limits the right to protect and expand the rights of our citizens.

Let me go on to section 2.

Senator HENDRICKSON. Certainly the Congress of the United States should never pass anything which is ambiguous if they can help it. Mr. MASLOW. And certainly not a constitutional amendment. Senator HENDRICKSON. But if it is unnecessary to pass a measure, we ought to stop there and forget about the ambiguity.

Mr. MASLOW. That is right, particularly in the field of constitutional law where doctrines vary all the time. You heap confusion upon confusion when you start putting in material clarifying the law in the Constitution. The Court would say certainly it was not the intent of the Senate to add something to the law, but maybe they are making some kind of a change. That has happened. The most recent case was Universal Camera case before the Supreme Court. They said Congress could not have intended to waste all this time and restate the existing practice; therefore they must have intended some change. Although both reports of the House and Senate indicated, I thought, clearly they were not attempting to effectuate a change with respect to one provision of the scope of judicial review.

Senator HENDRICKSON. Do you think that the word "respecting" as used in the first amendment to the Constitution is ambiguous?

Mr. MASLOW. It means "dealing with." It certainly would seem What else could it mean?

to me.

Senator HENDRICKSON. There is ambiguity in the first amendment: "Congress shall make no law respecting an establishment of religion." Mr. MASLOW. That means relating to.

Senator HENDRICKSON. There is no ambiguity?

Mr. MASLOW. I do not say the word "respecting" does not have an English meaning, but when you use it in this context you say, "No treaty shall be made relating to the rights of citizens."

Senator HENDRICKSON. Is there not ambiguity as far as you are concerned? Have you not assigned a definite meaning to the term? Mr. MASLOW. There is ambiguity in that you use the term "respecting," a term which is perhaps not ambiguous but so vague as to defy constitutional description.

Senator HENDRICKSON. Does the word "respecting" in the first amendment so defy?

Mr. MASLOW. I think you miss my point. I am not quarreling with the word, but in that sentence it forbids you to enact a treaty which deals with the rights of United States citizens. I do not see how anybody would be happier to forbid us to deal with the rights of United States citizens. When we entered into a treaty as we did in the nineteenth century

Senator HENDRICKSON. Let us not labor this point, if you do not mind, because I am convinced from what you said that this section needs careful study. I see the point you make, and I do think we do have to look this over very carefully.

Mr. MASLOW. Thank you, sir. Then I will go on.

Now, section 2 provides that no treaty or executive agreement shall vest in any international organization or in any foreign power any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President, and in the courts of the United States, respectively.

I say, first of all, no treaty can have such an effect, because it would be forbidden by the Constitution. The Constitution of the United States, which is the supreme law of the land, vests the legislative power in the Congress, and the executive power in the President, and the judicial power in the Supreme Court. So that no treaty can fly in the face of that language and violate the Constitution.

Secondly, as a matter of fact, sir, no treaty does do that. I believe Senator Bricker himself in his introductory statement said that no treaty up to now had done so, but the language, however, is susceptible of a construction which would forbid the United States to become a party to any treaty providing for any kind of international tribunal. That has judicial functions. It might have forbidden the international military tribunal in Nuremberg or Tokyo. It would seem to forbid international arbitration commissions. They seem to have a judicial power. Our boundary commissions, and so on.

I say that to be brief, sir, that it is either unnecessary or it is meaningless. In any event, there is no danger that we can divest our constitutional branches of the Government of any power. If any Senator does not believe in the international court or in the draft covenant for human rights or in any of the other treaties, he has a very simple solution. He can simply vote it down. That it what the purpose of the two-thirds requirement is, to make it difficult to ratify any treaty, when you realize how through the power of unlimited debate, how

possible it is for any small compact and cohesive minority to prevent a two-thirds

Senator HENDRICKSON. To divert a moment, do you believe in that power of unlimited debate?

Mr. MASLOW. No; I do not. But unfortunately it is the way the Senate is being run today. So there is no real danger. I think it is beside the point to cite horrible examples from this section or from that treaty. We are not concerned with treaties here. If you do not like those sections vote them down. But do not tie the hands of the United States Government for generations to come with provisions that are not necessary.

Senator HENDRICKSON. It might interest you to know that I have been trying to correct that power of unlimted debate.

Mr. MASLOW. I am aware of it. Thank you, sir.

Section 3 suffers from various faults, including ambiguity. It provides:

No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by Act or joint resolution.

The first ambiguity is to define what constitution they are speaking of in line 13. If they are speaking of the Constitution of the Federal Government, and that seems to be a fair reading of it, then we can merge with this topsy-turvy result, that whereas under present law no treaty may run counter to a specific prohibition of the Constitution, this section will now authorize Congress to amend the Constitution by a treaty and a concurrence of the Senate and House.

Mr. SMITHEY. How do you construe that to mean the Constitution of the United States?

Mr. MASLOW. I say it is arguable. It means either the Constitution of the United or constitution of the State. I think we ought not to have controversies about it. We ought to say which it means. It does not say there which it means. It could be either one. The Association of the Bar of the City of New York likewise feels that the term is susceptible to either construction.

The second ambiguity is that nobody could tell by looking at this section 3 as to what happens to the existing requirement of a twothirds vote for ratification. Is this section 3 to be intended as an addition or a substitution? It would seem that the first task of the draftsman is to resolve that problem. If it means in substitution, that instead of having a two-thirds vote in the Senate, we are now going to have a simple majority in both Houses, and concurrence of the President, you will find, sir, many respectable constitutional authorities who will agree with you. I think Mr. Tillett made the point that perhaps in the early days of our history when there were a handful of Senators and the Senate used to meet behind closed doors, it was possible to vest the constitutional power in the Senate alone. If it were a matter of fresh impressions today, I would certainly feel that it was wiser to have the treaty ratification power in the hands of Congress rather than the hands of the Senate. But whatever my views are, I cannot tell, nor can anybody else tell, what this means. "If it is intended not to be in substitution of the present constitutional requirement of two-thirds, but in addition to it, then it seems to me that we have a great deal of confusion.