with their sovereignty. Then, is it not their province and their duty to do something about it? Mr. PEARSON. Absolutely. I repeat Senator FERGUSON. Is that not what section 2 would do? They would say, "In certain fields we do not want you to do it. We do not want you to give our sovereignty away in the executive and legislative and judicial." Mr. PEARSON. That is right; and it is their privilege to do so. Senator FERGUSON. They then have to determine whether or not we can live in a world as a nation with that restriction on it. Mr. PEARSON. That is right. Senator FERGUSON. We are getting back to those days where they must have had the same problem when they were drafting the Con stitution. Mr. PEARSON. A great deal of this you can see. Senator FERGUSON. In the international field this is a new thing, yet. Let us say it is because of the smallness of the world. The treaty did not mean much when the world was large. Mr. PEARSON. Just as you were saying, Mr. Chairman, from San Francisco on the problems have been different. That does not, to our mind, mean the people would be well advised to shrink their powers now. For our money we would say, of course, the people have the power to change the rules and rewrite the Constitution from top to bottom. The people can rewrite it. Our judgment is that they could be better advised in their own selfish interests to leave it alone. Senator O'CONOR. That is the very reason I read you that first sentence of the American Bar Association proposal. As to whether it might not be considered prudent to restrict one area, taking, for example, that area which says that there shall be no treaty conflicting with any provisions of the Constitution of the United States, do you not think that would be prudent to go that far? Mr. PEARSON. It is pretty broad, sir. Granted that you do not want treaties to play fast and loose with the express prohibitions of the Constitution. I would not be prepared to say that some type of amendment could not be adopted, but it is often surprising, as you know, in drafting statutes, that you say something you think is crystal clear, and, of course, it means this, and time goes on and the next thing you know some court says it did not mean that at all. I feel it is not necessary, and the clear answer is that it is better to just leave it alone. Senator O'CONOR. Counsel has a question. Mr. SMITHEY. I wanted to nail down tighter the proposition which Senator Ferguson has raised. The first amendment to the Constitution, as you well know, says [reading]: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; ** Passing over the use of the word "respecting" in that amendment, and the fact that it also appears here, let me ask you this: Do you think that by treaty-and you can bring in the doctrine of Missouri versus Holland-do you think that under a treaty you could give Con gress the power to make a law abridging the freedom of the press or speech, or the establishment of a religion? Mr. PEARSON. No. Mr. SMITHEY. You do not? Mr. PEARSON. No. We say in this report that we do not think that the fact that Congress is mentioned in the first amendment makes any difference, if that has any bearing on your question. I realize your question was broader than that. Senator FERGUSON. If we cannot by treaty enlarge the powers of Congress, on the question of freedom of the press, what becomes of the section that says that the treaty appears to be coequal with the constitutional provision? Mr. PEARSON. You mean the language of the "supremacy" clause? Senator FERGUSON. Yes. Mr. PEARSON. I do not read the "supremacy" clause as saying that a treaty is on a level with the Constitution. Senator FERGUSON. You do not; you put it on the level with a statute? Mr. PEARSON. That is right. Senator FERGUSON. You say that it is the supreme law of the land, meaning that it is coequal with the statutory enactment? Mr. PEARSON. Yes, sir. Senator FERGUSON. And, therefore, you come to the conclusion that a statutory enactment can alter a treaty? Mr. PEARSON. Yes, sir; the Supreme Court has so held, and vice versa. Senator FERGUSON. Yes, but did they not in the Holland case say that the Constitution first prohibited the act of Congress; and, when the treaty was made the power of Congress was enlarged, therefore, the treaty became coequal with the Constitution? Mr. PEARSON. I am sure, sir, speaking from memory, they did not say that prior to the treaty the act was prohibited. There was no delegated power in Congress to pass that law. Senator FERGUSON. Therefore, it was prohibited; it was unconstitutional. Mr. SMITHEY. Did they hold the law unconstitutional? Mr. PEARSON. The lower courts did with a similar law previously, and that did not reach the Supreme Court. I do not believe the opinion even mentioned the fact. He says, "It may be assumed to be unconstitutional." He is obviously ducking the question. Mr. SMITHEY. Did the court ultimately hold after the treaty had been enacted that the same act, or nearly the same act, by the Congress, was constitutional under the treaty power? Mr. PEARSON. That is right. Mr. SMITHEY. So that it is clear-is it not-that under a treaty the Congress can get certain power which it would not otherwise have? Mr. PEARSON. That is right. Mr. SMITHEY. You say that it can have that power by virtue of a treaty, but there is a curb on that power in the form of the Bill of Rights; is that correct? Mr. PEARSON. And other express prohibitions. Mr. PEARSON. That is right. I will read what Mr. Justice Holmes said in Missouri v. Holland [reading]: We do not mean to imply that there are not qualifications to the treaty-making power And a little later The treaty in question does not contravene any prohibitory words to be found in the Constitution. Say it is dicta if you want. It is plain that he is testing that treaty against that test in his mind and he finds it meets the test. He says the new statute was constitutional. Mr. SMITHEY. I think you have heard the testimony this morning here to the effect that there are very eminent lawyers in this country who are worried about that very fact. Mr. PEARSON. There are many in this room, sir. Mr. SMITHEY. That is right. So that it is not in any respect a theoretical question without basisin fact or imagination? Mr. PEARSON. You are saying it is a subject on which reasonable men may differ. Mr. SMITHEY. I certainly am. Mr. PEARSON. I agree with that statement. Senator O'CONOR. Mr. Pearson, following one step further on your observation a minute ago that the legislative powers of the Congress could be increased under a treaty, do you think that could be done at the expense of the States of the Union; that is to say, in respect to subject matter in which the States heretofore have reserved unto themselves and have not delegated it to the National Congress? Mr. PEARSON. As I read the opinion, that is the way the court treated the matter in Missouri v. Holland. They did not think birds were interstate commerce. There was a question of whether they are international commerce, but the best guess seemed to be that they were subject matter of the States, and the court, 1 think it is fair to say, treated the problem as though it was a State area, which previously Congress could not deal with, but with the aid of a treaty it could. Senator O'CONOR. So that the States gradually could suffer a diminution of their powers through the exercise of treaty powers in which the State had no voice whatsoever? Mr. PEARSON. Yes, sir. And bearing on this, and the history of the thing and the plan that under the "necessary and proper" clause this result could follow, we quote at the beginning of our report the remarks that James Madison made on this problem. They had just had trouble in the treaty ending the Revolutionary War, and the British would not get out of the Northwest Territory, and our States were prosecuting former Tories and preventing the collection of debt, and so forth, and finally it got to the point where the Ambassadors wrote letters back and forth, and the Continental Congress passed a resolution asking, or I should say, praying, the States to repeal these laws which violated the treaty that closed the war. Two months after Congress passed that statute that was 165 years ago this month-they met, and one of the first things, of course, was that problem. As James Madison expressed it [reading]: The necessity of some adequate mode of preventing the States in their individual characters from defeating the constitutional authority of the States in their united character * had been decided by a past experience. They were not guessing; they had been through it, and they said, "We are not going to let this happen again." Briefly, sir, in conclusion, our judgment is that, to the extent that any of the proposals in the Bricker amendment make changes in the present powers, we do not feel that we, or that the people, should feel so sure that they will never want to use any of the powers that might be cut out by the proposed amendment. I know that others will deal with this, but I would like to briefly say that I think practically all of the discussion today has been concentrated on the effect of treaties inside the United States, and that in dealing with "Do you want to restrict the treaty-making power of the Nation?" it seems to us that you ought to think about what do we as a Nation stand to gain out of treaties? Should we constrict our bargaining power in dealing with other nations? You have got to weigh that in the balance. It is thought that some treaties have bad effects inside the United States, but that is just another reason we feel that each treaty should be decided on its own particular merits to determine whether on balance the Nation and we as a people as a whole stand to gain or lose. Mr. Backus will discuss the executive agreement. I think I have taken too much of your time already. I think that he would also want to speak on section 3, as that comes nearest to the American Bar Association report. Senator O'CONOR. We are very much obliged to you, Mr. Pearson. Mr. Backus, we will be glad to have you address yourself to that. Senator FERGUSON. Thank you very much, Mr. Pearson. Mr. BACKUS. Thank you, gentlemen, very much. I appreciate the opportunity to be heard, since we have come a long way, and we are glad to have the opportunity to talk to you. On the question of the executive agreement, the method which our two committees adopted was to try the suit on for size. We went through the executive agreements which we knew about, and we measured that against what would have happened under the Bricker amendment, and I would like to run over that just briefly. Senator FERGUSON. Did you classify the Yalta Agreement as an executive agreement? Mr. BACKUS. I would be prepared to, sir. Senator FERGUSON. You would say that that was an executive agreement? Mr. BACKUS. I know the argument that there was no title underneath and so forth, but Senator FERGUSON. But you would classify it as that? Mr. BACKUS. I would be prepared to. Senator FERGUSON. So that when you discuss the problem here, it would include such a matter as the Yalta Agreement? Mr. BACKUS. Yes. Senator FERGUSON. And the one made at Casablanca? Mr. BACKUS. Yes; we studied that, sir. Senator FERGUSON. That would be the same thing? Mr. BACKUS. Yes, Senator FERGUSON. It would be an agreement that the President might make with the Prime Minister of Great Britain by a nod of the head or a gesture? Mr. BACKUS. I would think it should be at least in writing. I do not think a nod of the head would be an executive agreement. Senator FERGUSON. I want to know what you classify as an executive agreement. Mr. BACKUS. I would think that it would be in writing. Senator FERGUSON. Is there anything in the law that requires executive agreements to be in writing? Mr. BACKUS. Executive agreements have been singularly freeSenator FERGUSON. We used to have a statute of frauds requiring certain agreements to be made in writing, and we would not allow them to come into evidence unless they were. I wonder whether the same thing is true with an executive agreement? Mr. BACKUS. Executive agreements have been singularly free of litigation. There is certainly no United States Supreme Court case deciding such a point, although the only one that ever hit the United States Supreme Court was in writing. There is a provision in the United Nations Charter which provides that treaties and international agreements shall be filed with the United Nations. I would think it would be difficult to file an oral agreement. Mr. BACKUS. Well, exchange of memoranda might be Senator FERGUSON. The Harvard professor seems anxious, and I am anxious to get him on the witness stand. Mr. BACKUS. An exchange of memoranda might constitute an agreement. Senator FERGUSON. The thing I am trying to find out about executive agreements is this: I have spent considerable time on them, and I have difficulty in determining, as is said here, the difference between a treaty and an executive agreement, whether one should be a treaty or an executive agreement, or can we insist upon it being a treaty? Mr. BACKUS. That is a problem that I hope in the course of the discussions I will come to, but if you would prefer I will go to that now. Senator FERGUSON. No. That is one of the problems. Mr. BACKUS. One of the first things we found out was that Congress, rather than restricting the use of executive agreements has frequently expressly authorized them by statute, to such an extent that some 85 percent of the agreements entered into during the period we took as a test, which was 1951, were directly responsive to statutory authorization. I think that accounts probably for the great increase in the use of executive agreements. Of the remainder, of the 15 percent, we deduced that most of those were of the kind-and I think this gets into your treaty designation difference, too-that either needed congressional appropriations to carry on the personnel who were working under it, or congressional laws. |