scholars as an attempt to interfere with the exercise of powers vested in the President by the Constitution. I refer, incidentally, to the statement of the Supreme Court in Ex parte Quirin (317 U. S. 1, 25), that "Congress and the President, like the courts, possess no power not derived from the Constitution." Is it not arguable that, under article I, section 8, paragraph 18, of the Constitution, Congress has power to enact laws not only "for" but in relation to the execution of the power vested in the President to enter into agreements other than treaties? 3. General observation Some concern has been expressed by thoughtful lawyers (for example, Judge Florence Allen, The Treaty as an Instrument of Legislation, p. 9) as to the manner in which treaties are drafted under the auspices of the United Nations. Strong pressure is brought to bear on our representatives to accept treaty provisions which do not appear to those representatives to be in satisfactory form. I am thinking particularly of ambiguous language in the Genocide Convention. It is possible that the Senate or the Congress as a whole could perform a valuable public service by insisting that such treaties, or perhaps all multilateral treaties, be signed on behalf of the United States only after the President has obtained the advice of the Senate. A constitutional amendment would not be required; action by the Senate or the Congress as a whole would be based on a constitutional provision which has been neglected almost from the start. Article I, section 8, paragraph 18, of the Constitution might also be pertinent. I greatly appreciate having been given the opportunity to extend my remarks in this memorandum. I should be glad, upon request, to be of further assistance to the committee in the study of the important questions which are before it. Respectfully submitted. EDGAR TURLINGTON. THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Hon. PAT MCCARRAN, Chairman, Committee on the Judiciary, Senate Office Building, Washington, D. C. Re Senate Joint Resolution 130. DEAR SENATOR MCCARRAN AND OTHER MEMBERS OF THE SENATE COMMITTEE ON THE JUDICIARY: Mr. Frank E. Holman has sent us a copy of his letter to you of June 12, 1952, requesting that there be read into the record of your subcommittee on the above subject his letter to us of June 11, 1952, making observations on the report which we filed at the hearing on May 21, 1952. The Association of the Bar of the City of New York approved the report and voted its opposition to Senate Joint Resolution 130. We enclose a copy of our reply to Mr. Holman's observations. We do not know whether you will be disposed to grant Mr. Holman's request, but we respectfully ask that, if you do, you will also include our enclosed reply in the record. Sincerely yours, THEODORE PEARSON, Chairman, Committee on Federal Legislation. Chairman, Committee on International Law. THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Re Senate Joint Resolution 130. FRANK E. HOLMAN, Esq., Holman, Mickelwait, Marion, Black & Perkins, Hoge Building, Seattle 4, Wash. New York, August 8, 1952. DEAR MR. HOLMAN: Thank you for sending us a copy of your letter of June 12, 1952, to Senator McCarran and other members of the Senate Judiciary Committee on the above subject, requesting that there be read into the record of its subcommittee your letter of June 11, 1952, addressed to us as chairmen of the committees on Federal legislation and international law of the Association of the Bar of the City of New York. As we believe you know, the association at its annual meeting on May 13, 1952, adopted the following resolution: "Resolved, That the Association of the Bar of the City of New York approves the report of its committee on Federal legislation and committee on international law dated April 28, 1952, and entitled 'Report on joint resolution proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements', and opposes said proposed constitutional amendment known as Senate Joint Resolution 130." As you recognize, the report of our committees was particularly directed to an examination of Senate Joint Resolution 130, though in a note on page 24 we quoted the proposal of the House of delegates of the American Bar Association (pointing out that it would have reversed Ware v. Hylton, in which the Supreme Court in 1796 upheld the treaty with Great Britain ending the Revolutionary War, as overriding inconsistent State law on debts). You will therefore appreciate that, insofar as we comment here on your observation on our committees' report as bearing on the House of Delegates' proposal, we are doing so as individuals and without action by our committees. Your first point, we believe, is that, because lawyers do not all agree as to what the Constitution means, the Constitution should be amended. But you do not point to a single final court holding which you say is wrong or should be corrected by a constitutional amendment. Besides, declaratory statements of law often have an illusory simplicity and turn out to defeat their objectives. We hate to think of the daily flood of amendments which would be necessary if we were to adopt a criterion based on lawyers' doubts. Your second point is that, since in Canada, England, and some other nations a treaty does not become internal law until implemented by legislation, the United States is not on a parity with them because under our Constitution (as you recognize) a treaty can be made either self-executing or not, as desired. But you do not point out a single disadvantage to us in preserving this freedom of choice. In any event, these other countries afford no standard of comparison, because there the government at the time in office controls both the executive and legislative branches, and the treaty-making power and legislative power can be exercised as one. Your third point is that our country should be deprived of its present power to make treaties in fields affecting internal law, unless such internal law happens to fall within the legislative powers which the Constitution specifically delegates to Congress. In the negotiation and performance of treaties in the broader fields, such a proposal would not only by its terms prevent our Nation from speaking with one voice but would as a practical matter prevent any such treaties at all, because implementing legislation from all of the 48 States would obviously be impossible of attainment. Such a proposal would in large part set the clock back to the era of the Articles of Confederation, even though one of its greatest weaknesses which the Constitution expressly corrected was this impotence of the National Government to make treaty promises which it could enforce against conflicting State legislation. You do not point to a single treaty made in the intervening 163 years which you say is bad or which should have been prohibited by a constitutional amendment. And you ignore the fact that such a proposal would prevent us hereafter from obtaining from foreign countries even the most conventional reciprocal treaties, protecting our citizens abroad from freedom from discriminatory treatment in such matters as owning land, inheriting property, conducting their business, etc. We are glad to note that you do not attempt to defend section 2 of the proposed Bricker amendment. As regards section 4 thereof, relating to executive agreements, which the house of delegates proposal does not attempt to deal with and which you seek to justify by a brief allusion to making Presidents and Secretaries of State more care.ul about wining and dining, we would not wish to recapitulate here the careful balancing of the pros and cons of changing or delimiting the executive power which was set forth in our committee's report. If there is a real danger of leaving the President too much power, there is also a real danger of taking too much away. Our committees concluded that section 4 of Senate Joint Resolution 130 does more harm than good and is undesirable. Perhaps where we differ with you most sharply is in your fundamental distrust of the President and Senate as a proper treaty-making agency under the Constitution as it stands. You refer to the additional safeguards mentioned in our report as though the present constitutional requirements were nonexistent. You say we might "get ourselves into a treaty," as though that could happen without the advice and consent of two-thirds of the Senators present. You do not point to a single instance in our 163 years of experience where you say the President and Senate have failed to "give the American people protection," nor do you advance a single reason why you believe they might betray the American people in the future. Our views are shared by Prof. Arthur E. Sutherland, Jr., who has published a critical analysis of the Bricker, ABA, and other proposed amendments entitled "Restricting the Treaty Power," in the Harvard Law Review for June 1952. As Professor Sutherland concludes: "Wise men have sometimes found difficulty in meeting problems even under today's treaty restrictions. We should do well to trust our descendants at least as far as our ancestors trusted us." We cannot The Bricker and house of delegates proposals deliberately encumber the treatymaking procedure and shrink the Nation's treaty-making power. share your view that they are either necessary or desirable. We are sending a copy of this letter to Senator McCarran. Very truly yours, THEODORE PEARSON, Chairman, Committee on Federal Legislation. DANA CONVERSE BACKUS, Chairman, Committee on International Law. HOLMAN, MICKELWAIT, MARION, BLACK & PERKINS, Re Senate Joint Resolution 130. MY DEAR SENATOR MCCARRAN AND OTHER MEMBERS OF THE SENATE COMMITTEE ON THE JUDICIARY: I am taking the liberty of sending you and the other members of your subcommittee a copy of a letter which I have directed to Mr. Theodore Pearson, chairman of the Committee on Federal Legislation, and Mr. Dana Converse Backus, chairman of the Committee on International Law, of the Association of the Bar of the City of New York. Since I was not present at the time the Report of the Bar of the City of New York was presented to the subcommittee and I had not been favored with a copy of it at the time I testified, I respectfully request that the observations made with respect to that report as set forth in the enclosed letter be read into the record. So far as I am aware, the bar of the city of New York is the only bar association in the United States that has adopted a report opposing the idea of a constitutional amendment to protect American rights against treaty law, whereas many other bar associations have already gone on record as favoring such a proposal. In due course I believe a very large number of bar associations throughout the country will do likewise. Yours sincerely, FRANK E. HOLMAN. June 11, 1952. HOLMAN, MICKELWAIT, MARION, BLACK & PERKINS, Mr. THEODORE PEARSON, Chairman, Committee on International Law, Association of the Bar of the City of New York, 42 West Forty-fourth Street, New York, N. Y. GENTLEMAN: I have just had the opportunity of reading and studying the printed copy of the report of your committees with respect to the joint resolution proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements (S. J. Res. 130). I recognize that your report is particularly directed to an examination of the text of Senator Bricker's proposal but by implication at least you are opposed to any amendment of the Constitution of the United States with respect to the treaty power, and I assume that your opposition extends to the form of amendment proposed by the American Bar Association reading as follows: "A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. 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." However, it is quite apparent that in the opinion of your committees the Constitution of the United States and our Bill of Rights should not be changed, amended, or abridged by a treaty. You say at page 12, for example: "We cannot believe that the Bill of Rights would be held to apply only to legislative action. If the President, for example, issued an Executive order which concededly transgressed the Bill of Rights, we have no doubt that the order would be held unconstitutional even though it was solely within the executive sphere and without any participation by Congress. It strains credulity to imagine that the Supreme Court would allow an abridgement of the Bill of Rights because it does not mention the President and the Senate." You say earlier, at page 10: are, "Starting from the common ground that no sensible person wants to permit the free exercise of these rights to be abridged or prohibited, it appears to us that the only important questions in considering this part of the proposed section 1 first, whether a treaty or executive agreement can effect such abridgement or prohibition, and second, whether any danger that a treaty or executive agreement could have this effect warrants including an advance prohibition in the Constitution." You therefore seem to agree with Senator Bricker and the American Bar Association that no treaty should be allowed to amend or abridge the Constitution of the United States. Senator Bricker and the American Bar Association fear that the tenor or dicta of earlier judicial decisions to that effect was abruptly arrested by Missouri v. Holland (252 U. S. 416), and that an even more dangerous threat is involved in the doctrine announced by Mr. Justice Sutherland in the Curtiss-Wright case (299 U. S. 204) that the treaty-making power, being an attribute of sovereignty, is inherent in the National Government apart from any grant in the Constitution. It would appear, therefore, that some doubt at least has been thrown upon the salutary developing doctrine of the earlier cases by the pronouncements of the later cases. If this is true, why should anyone oppose the setting at rest of this doubt for all time by an appropriate constitutional amendment in simple terms stating, as does the first line of the American Bar Association proposal, that "a provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect”? The second point which the American Bar Association amendment seeks to reach is the matter of a treaty becoming internal law without being implemented by national legislation. With a few exceptions, which upon examination are not true exceptions, in all other nations of the world a treaty does not become internal Jaw' until implemented by national legislation. France is sometimes cited as an exception. Regardless of the similarity of the provisions of the present French Constitution, France, among other things, is not a Federal Republic like ours. There is no analogous doctrine of States' rights as between French lesser units of government and the Central Government as exists between our States and our National Government. French law as to most matters is national in extent, whereas much of our law with respect to internal matters is within the orbit of State legislation. Canada is nearer to our situation, where the Provinces in Canada have jurisdiction over certain internal matters which are the subject of Provincial legislation. Why should America not be on the same footing as Canada and England with respect to the necessity of implementing treaties by legislation? Your report seems to have advanced no answer to this point of putting the United States on a parity with other nations in the matter of treaties not being self-executing. The third point involved is that, under the American Bar Association proposal, legislation implementing a treaty must be enacted under the "delegated powers" which the Congress would possess in the absence of a treaty. This merely is a corollary to the first point. It would do no good to say that no provision of a treaty which conflicts with the Constitution should be of force or effect and then to permit the Congress to implement a treaty by legislation which would be unconstitutional if the Congress enacted the legislation in the absence of a treaty. All the fears (originally thought up by Professor Chafee) that the treaty-making power would be unduly hampered by the requirement that implementing legislation must be within the delegated powers of the Congress have now been completely answered in the very scholarly article by Dr. George A. Finch in the June 1952 issue of the American Bar Association Journal at page 467 et seq. In your conclusion 1 in connection with your reference to the fear that our freedoms will be abridged by use of the treaty power, you state: "The main problem here seems to be whether there is any reasonable cause to believe that the Constitution as it stands permits any such abridgement. Be lieving as we do that there is not, an amendment merely declaring that the law is what it is would not seem objectionable on that ground." Of course, your group may believe there is no such "reasonable cause." but a majority of the American Bar Association and most of the lawyers throughout the United States believe there is "reasonable cause" to believe that a treaty may abridge certain of our basic rights as fixed and recognized by the Constitution. The very fact that there is this difference of opinion and that you are willing to say an amendment in this particular would not seem objectionable clearly indicates that to set at rest all doubt such an amendment would be desirable instead of undesirable as you finally conclude. Your conclusion 2 does not particularly interest me at this time. Your conclusion 3 with respect to the use of the treaty-making power to change or abridge internal law would leave our protection in this matter merely to a subsequent act of Congress or a provision in the treaty that the treaty is not self-executing. But why should our protection in this regard not also be set at rest? Why first get ourselves into a treaty which requires subsequent law to change it or why risk the matter of putting into each treaty a provision that it is not self-executing? The negotiation of treaties will proceed with greater safety to America if we are protected by a constitutional amendment. Your conclusion 4 deals with executive agreements and you say: * * an executive agreement cannot nullify Federal law, and Congress can override executive agreements by legislation as it can treaties, and can frustrate most executive agreements because they require either implementing legislation or appropriations." But, again, why depend on subsequent legislation? The damage is often done before the matter of subsequent nullifying legislation can be considered. Witness the executive agreements made at Yalta and elsewhere. A constitutional provision would have the effect of making Presidents and Secretaries of State somewhat more careful about the kind and character of executive agreements they enter into on the spur of the moment while being wined and dined in foreign lands. The end result of your report seems to me merely this: that you approve the principle that a treaty should not amend or abridge the Constitution of the United States, but you are unwilling to incorporate this into a constitutional amendment; that you approve the idea that a treaty should not make domestic law for the people of the United States if they can get Congress to pass a subsequent act nullifying or superseding a treaty, but you are unwilling to give the American people this protection in the original instance; that you approve the theory that a bad executive agreement can be nullified by Federal legislation and say that the Congress can override it by legislation, but you are unwilling as an initial protection to the American people to have this theory incorporated in a constitutional amendment. Since I have been devoting considerable time and attention to the foregoing matters for the past 4 years, I hope you will not consider it inappropriate for me to make the above comments on your report. I am sending a copy of this letter to Senator McCarran, chairman of the Senate Committee on the Judiciary. Yours sincerely, FRANK E. HOLMAN. MEMORANDUM IN REPLY TO THE MEMORANDUM OF THE DEPARTMENT OF JUSTICE ON SENATE JOINT RESOLUTION 130, EIGHTY-SECOND CONGRESS, PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE AGREEMENTS On June 19, 1952, the Department of Justice, through the then Solicitor General of the United States, Philip B. Perlman, filed with the subcommittee of the Senate Committee on the Judiciary a memorandum entitled as above set forth in which is outlined its objections to every part of the constitutional amendment proposed by Senate Joint Resolution 130, as well as the proposed constitutional amendment suggested by the American Bar Association. That memorandum states: “Accordingly, the Department opposes any of the suggested amendments to the treaty power" (p. 2), and "For the reasons stated in this memorandum, the Department of Justice opposes all of the proposed amendments to the Constitution" (p. 40). |