which it helped draft and promote, on the status of refugees." Secretary of State Dulles officially renounced any intention to adhere to conventions on human rights which the UN was drafting. 12 When President Kennedy abandoned the Dulles policy and sent three minor conventions to the Senate, the Foreign Relations Committee failed to recommend consent to two of them.1

15

13

The last decade even saw a determined effort, led by Senator Bricker, to amend the United States Constitution in ways principally designed to make American adherence to human rights covenants impossible. That effort failed, but lawyers now are endeavoring to use the Constitution as it is to reach the same end.1 Amendment, they maintain, is not necessary to prohibit American participation in human rights covenants: the Constitution, they say, already forbids the use of the treaty power for such purposes since the human rights of American inhabitants are essentially a matter of domestic, not international, concern.17

I shall not consider here whether it is in the interest of the United States to adhere to any particular human rights agreement, or even whether, in principle, the United States should join in cooperative efforts to promote human rights through conventions setting uniform minimum standards of respect for the rights of a nation's own inhabitants. My concern is exclusively with the constitutional objections that are raised against American participation in international treaties on human rights." I am convinced that the argument that the United States is without power under the Constitution to adhere to such

text.

11 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (1954). 12 32 DEP'T OF STATE BULL. 820, 822 (1955); see note 69 infra and accompanying

13 See note 66 infra.

14 109 CONG. REC. 13046 (1963); 113 CONG. REC. 15750-51 (daily ed. Nov. 2, 1967).

15 The principal version of the Bricker Amendment, prepared by the American Bar Association, is contained in Hearings on S.J. Res. 1 and S.J. Res. 43 Before a Subcomm. of the Senate Comm. on the Judiciary, 83d Cong., 1st Sess. at 35-36 (1953).

18 American Bar Association, Keport of the Standing Committee on Peace and Law Through United Nations: Human Rights Conventions and Recommendations, 1 INT'L LAW. 600, 607 (1967); see Hearings on Human Rights Conventions Before a Subcomm. of the Senate Comm. on Foreign Relations, 90th Cong., 1st Sess., pussin (1967).

17 American Bar Association, Report of the Standing Committee on Peace and Law Through United Nations: Human Rights Conventions and Reccommendations. 1 INT'L LAW. 600, 601 (1967).

18 I have dealt at length with basic constitutional doctrine about treaties in L. HENKIN, Arms Control AND INSPECTION IN AMERICAN LAW (1958) (hereinafter cited as ARMS CONTROL], particularly in chapter III, at 25-46. See also Henkin, The Treaty Makers and the Law Makers: The Law of the Land and Foreign Rela tions, 107 Ú. PA. L. REV. 903 (1959) [hereinafter cited as Law of the Land]; Henkin, The Treaty Makers and the Law Makers: The Niagara Reservation, 56 COLUM. L Rev. 1151 (1956) [hereinafter cited as Niagara Reservation].

treaties has no basis whatever-in the language of the Constitution, in its travaux préparatoires, in the institutions it established, in its principles of federalism or of separation of powers, in almost two centuries of constitutional history, or in any other consideration relevant to constitutional interpretation.

I

Article II, section 2 of the Constitution provides that the President "shall have Power, by and with the Advice and Consent of the Senate, 'to make Treaties, provided two-thirds of the Senators present concur." The Constitution does not define treaties; the framers knew what treaties were and, no doubt, did not see any need to define what was well known in international law and practice. Nor does the Constitution state that there are matters which cannot properly be the subject of a treaty, or that there are other limitations on treaties and the treaty power.19

.

Still, while no treaty or treaty provision has ever been declared unconstitutional, it is settled that treaties are subject to constitutional limitations. There was once a myth that this was not so. The view that treaties are not subject to constitutional limitations found support in the language of the supremacy clause and in an ambiguous suggestion by Mr. Justice Holmes.20 But the question was thoroughly explored during the Bricker controversy, and everyone, on both sides, firmly rejected that view. In 1957, in Reid v. Covert,21 Mr. Justice Black seized the occasion to lay that ghost to rest. Although there was no majority opinion of the Court, and Justice Black's statement was perhaps not necessary to his result, he stated that treaties, like laws, must be made "in pursuance of" the Constitution, and that

19 International law and practice know no limitation here relevant. HEIM, INTERNATIONAL LAW § 501 (8th ed. H. Lauterpacht 1955). CHARTER art. 103.

20 Mr. Justice Holmes said:

See L. OPPEN-
But cf. U.N.

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention.

Missouri v. Holland, 252 U.S. 416, 433 (1920).

U.S. CONST. art. VI, cl. 2 provides in part: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...

See also ARMS CONTROL 29, 169-70 n.14. The myth was repeated by John Foster Dulles shortly before he became Secretary of State, but he later repudiated the statement. Id. at 171 n.14.

21 354 U.S. 1 (1957).

no agreement with a foreign nation can confer power on the
Congress, or on any other branch of Government, which is
free from the restraints of the Constitution. .

The prohibitions of the Constitution were designed to
apply to all branches of the National Government and they
cannot be nullified by the Executive or by the Executive and
the Senate combined.22

From our constitutional beginnings there have also been suggestions that the treaty power is limited-by implication--by other provisions of the Constitution, by the Constitution as a whole, or by the philosophy that permeates it and the institutions it established. Such limitations have principally been implied from the provisions for the separation of powers among the branches of the federal government and the division of authority between the government and the states.28 An early statement of such limitations is found in Jefferson's Manual of Parliamentary Practice:

By the Constitution of the United States, this department of legislation is confined to two branches only, of the ordinary legislature; the President originating, and the Senate having a negative. To what subject this power extends, has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. (1) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. (3) It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. (4) And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others.24

22 Id. at 16-17. See also ARMS CONTROL 173 n.17. Justice Black expounded the reasons for the language of the supremacy clause that struck Holmes, see note 20 supra. See generally ARMS CONTROL 169-72 n.14.

Even the first amendment, which begins, "Congress shall make no law . . ." applies to treaties as well. See ARMS CONTROL 37, 179 n.44.

23 Various statements to this effect going back to our early history are collected in H. TUCKER, LIMITATIONS ON THE TREATY-MAKING POWER §§ 2-51 (1915), and Mikell, The Extent of the Treaty-Making Power of the President and Senate of the United States, 57 U. Pa. L. REV. 435, 436-38 n.1 (1909).

24 T. JEFFERSON, MANUAL OF PARLIAMENTARY PRACTICE 110 (1876), quoted in 5 J. MOORE, DIGEST OF INTERNATIONAL LAW 162 (1906). See also the remarks of John Calhoun made in 1816, recorded in 29 DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 532 (1854).

As the final sentence may imply, Jefferson was no friend of the treaty power. 25 Indeed, the limitations he enumerates leave little room for treaties. Under his final clause, a treaty cannot deal with matters which are within the enumerated powers of Congress. By the third limitation, the treaty power cannot deal with matters reserved to the states-presumably, those not expressly conferred upon the national government or some branch of it, principally upon Congress by the eighth section of article I.20 If a treaty can deal neither with matters delegated to Congress, nor with matters not delegated to Congress, it can deal with very little.27

These clauses in Jefferson's manual have long been famous examples of his bad guesses, and notable evidence that ours has not become a Jeffersonian Constitution. Everyone today agrees that a treaty can deal with matters on which Congress may legislate.28 Under contemporary views of the powers of Congress, this excludes very little. Indeed, I have suggested that there is practically nothing that is dealt with by treaty that could not also be the subject of legislation by Congress.20 In practice, the treaty-makers have frequently concluded agreements dealing with matters concerning which Congress could also legislate, such as tariffs and other regulations of commerce with foreign nations. Also, treaties have frequently dealt with matters which, apart from treaty, seemed reserved to the states: for example, the rights

25 In 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 339 n.3 (5th ed. 1891), Joseph Story said:

Mr. Jefferson seems at one time to have thought that the Constitution only meant to authorize the President and Senate to carry into effect, by way of treaty, any power they might constitutionally exercise. At the same time, he admits that he was sensible of the weak points of this position. 4 Jefferson's Corresp. 498. What are such powers given to the President and Senate? Could they make appointments by treaty?

26 This is the common interpretation of Jefferson's dictum. Of course, if one recognizes that the treaty power is one of the powers delegated to the federal government, and that what comes within it is therefore not reserved to the states, one could accept Jefferson's statement to mean that there may be some special areas reserved to the states even as regards the treaty power, for example, that a treaty cannot cede territory of a state without its consent. See text accompanying note 37 infra.

27 Presumably it could deal with matters which are in the President's domain under the Constitution.

28 See Q. WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS § 59 (1922). The Supreme Court itself never gave any encouragement to the view that treaties cannot deal with matters that are within the powers delegated to Congress. On the contrary, it has always insisted that a treaty and statute might deal with the same matter, and that, for example, if the two were inconsistent the later in time would prevail. E.g., Whitney v. Robertson, 124 U.S. 190 (1888); see ARMS CONTROL 29-31, 173-76 nn.20-23.

See Law of the Land 913-30. Since that was written the Supreme Court has found additional powers of Congress in the enforcement clause of the fourteenth amendment. See Katzenbach v. Morgan, 384 U.S. 641 (1966). See also United States v. Guest, 383 U.S. 745 (1966).

of aliens to inherit property 80 or to engage in local occupations. Almost half a century ago, Mr. Justice Holmes, in Missouri v. Holland,81 settled that, since the treaty power was delegated to the federal government, what is within that power is not reserved to the states.' 82 Treaties, then, are not limited by any "invisible radiation" 33 from the truism that is the tenth amendment.34 Because Missouri v. Holland finally disposed of Jefferson's third limitation, Senator Bricker sought to have the Constitution amended to "repeal" that case. The decision has never been questioned in the Supreme Court, and Senator Bricker's abortive attempts only reaffirmed its continuing validity.

35

Opponents of American adherence to human rights conventions cannot, and do not, invoke the long-rejected Jeffersonian limitations just discussed. While not unrelated to those propositions, their arguments are essentially closer to Jefferson's first two limitations-that a treaty "must concern the foreign nation," and that it must deal with "objects which are usually regulated by treaty, and cannot be otherwise regulated." These limitations, perhaps, are also implied in the assertions that treaties cannot deal with matters that are "of domestic concern" or matters "essentially within the domestic jurisdiction of the United States."

The fact that two of Jefferson's four contentions have been clearly rejected by later interpretations of the Constitution might be enough to dismiss him as an authority on the scope of the treaty power today. Still, all his suggestions require consideration on their merits, and Jefferson's first two limitations have support in other authority, including some in the United States Reports.

30 ARMS CONTROL 33-34, 176 n.25, 177 n.28. Compare Clark v. Allen, 331 U.S. 503 (1947), with Asakura v. Seattle, 265 U.S. 332 (1924), and Hauenstein v. Lynham, 100 U.S. 483 (1879). For the authority of states to deal with inheritance by aliens in the absence of treaty, see Zschernig v. Miller, 389 U.S. 429 (1968).

81 252 U.S. 416, 433 (1920). Contrary to soine impressions, Holmes was not making new law. ARMS CONTROL 33-34, 176 n.25.

82 See Law of the Land 909-13. Even before Missouri v. Holland, 262 U.S. 416 (1920), the view expounded by Justice Holmes was that of the majority. ARMS CONTROL 33-34, 176 n.25. On the other hand, even after Missouri v. Holland was decided, its implications were not clearly understood, sometimes even by American negotiators. For example, American representatives for some time continued to claim that the United States could not undertake to regulate the manufacture of armaments because manufacturing was local and reserved to the states. The Department of State recognized its error several years later and officially abandoned the position in 1932. ARMS CONTROL 176-77 n.25.

88 Missouri v. Holland, 252 U.S. 416, 434 (1920) (Holmes, J. ). 84 "Our conclusion is unaffected by the Tenth Amendment. The amendment states but a truism that all is retained which has not been surrendered." United States v. Darby, 312 U.S. 100, 123-24 (1941).

35 Some of them, at least, would be particularly reluctant to claim that human rights are reserved to the Congress. Like Senator Bricker, they might insist that Congress could not deal with them either. But see Civil Rights Act of 1964, 78 Stat. 241-68 (1964), 28 U.S.C. § 1447 (d) (1964), 42 U.S.C. §§ 1971, 1975a-1975d, 2000a2000h-6 (1964); cases cited note 29 supra.