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Dulles apparently in an effort to console the Bricker forces after the descat of their efforts to amend the Constitution.68 The Circular-an instruction to the State Department provided :
Treaties should be designed to promote United States interests by securing action by foreign governments in a way deemed advantageouş to the United States. Treaties are not to be used as a device for the purpose of effecting internal social changes or to try to circunvent the constitutional procedures established in relation to what are essentially matters of domestic concern.»
The Circular, it should be noted, announced policy, not constitutional doctrine. Indeed, it was probably designed to impose as policy what the Bricker Amendment would have imposed as constitutional law, but which, it was realized, was not the law of the Constitution unamended. Still, the final clause of the Circular has apparently led some to argue that the Constitution precludes American adherence to any treaty that deals with matters "that are essentially within the domestic jurisdiction of the United States." 71
Whatever its intellectual origins, the argument reflects fundamental misconceptions. The concept of "domestic jurisdiction" is unknown to American constitutional doctrine; it is well known to international law." Under international law, a matter is deemed to be within a
Bo For other reassurances to the Brickerites, sec Low of the Land 934-35 n.66.
GW U.S. Dep't of State, Dep't Cir. No. 175, at 2 (1955). The Circular, in turn, chocs remarks made by Dulles two years earlier during the hearings on the Bricker Amendment. See Heurinys on S.J. Res. 1 und S.J. Res. 43 Before a Subcomm. of the Senule Comm. on the Judiciary, 83d Cong., 1st Sess. 824-25 (1953). The circular has since been revised and the quoted language eliminated.
Tv In fact, when President Kennedy in 1963 sent three minor human rights conNeuins to the Senate, see note 66 supra, it did eventually consent to one of them. 113 Cong. Rec. 15750-51 (daily ed. Nov. 2, 1967) (consent to convention on abolition uf slavery).
71 American Bar Association, Report of the Standing Committee on Peace and Luw Through United Nations: Human Righis Conventions and Recommendations, I Int'l Law. 600, 601 (1967). Note that the Circular, supra note 69, speaks of "Jumestic concern,
not of "domestic jurisdiction." The latter has became a term of are in international law; the former has not. See notes 72-74 infra and accompanying lex! The Circular inay have intended to use "doinestic concern" in contradistinction 10 Huglies' "international concern." In fact, this is a misleading play on words. "Locanestic concern" and "international concern" are not closed, exclusive categories. To say that something is essentially a matter of domestic concern may be merely a way of expressing a determination not to negotiate about it. But what is essentially a muller of "domestic concern" becomes a matter of international concern" if nations du, in fact, decide to bargain about it. See note 75 infra.
7: Compare U.N. CHARTER art. 2, para. 7, with Declaration on the Part of the L'nited Staies, 61 Stat. 1218 (1946), T.I.A.S. No. 1598 (promulgated Aug. 14, 1946), in which the United States accepted, with reservations, compulsory jurisdiction of the International Court of Justice under 1.C.J. Star. art. 36, para. 2. One of the stipulurrit exceptions related to "... disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the Umuted States of America. ..." Declaration on the Part of the United States, supra.
country's domestic jurisdiction if it is not governed by international law or by any treaty obligation. What is within the domestic jurisdiction of a country in the absence of treaty ceases to be so when that nation enters an international agreement on the subject." To suggest that the Constitution forbids treaties as to matters that are "essentially within the domestic jurisdiction of the United States," is to bar any treaty on any matter not already governed by customary international law or previous agreement. Such a theory would prevent the United States from participating in the development of new law by multilateral convention--the principal form of international legislation today. It would preclude many provisions in treaties of commerce, friendship and navigation, in treaties on disarmament, extradition, nationality, the prevention of double taxation and a host of other subjects. It seems patently absurd." In any event, it is a limitation which no one has suggested before and which is without foundation. It cannot be implied in Hughes' "international concern" limitation, nor can it be derived froin the character and purpose of the treaty power as an instrunient of foreign relations; it has no support even in early writings on the Constitution; and it is contradicted by the history of American treaty practice. In the absence of treaty, this country's armaments, its nationality laws, its immigration policies, all lie within its "domestic jurisdiction;" yet the United States has negotiated agreements on these subjects of international concern from the beginning of its history to this day.
Today, human rights are of deep "international concern”; they have an iniportant place in the foreign relations of the United States. Human rights in other countries have become, ineluctably, this country's business. It has repeatedly joined with other nations to condemn invasions of human rights in communist countries as well as in South Africa. For the United States to insist that a nation's treatment of its own inhabitants is not of international concern would itself have grievous impact on American foreign relations with Asian and
78 Sec, e.g., Declaration on the Part of the United States, 61 Stat. 1218 (1946), T.I.A.S. No. 1598 (pronulgatod Aug. 14, 1946).
74 See Advisory Opinion on Nationality Decrees Issued in Tunis and Morocco, (1923) P.C.I.). ser. B, No. 4.
76 The authors of this argument might insist that tiey are using "domestic jurisdiction" in some special sense. I do not know what it is. It would seem that they are trying by this phrase to read back into the Constitution the notion that a treaty may not deal with a local matter"--a notion long rejected and finally demolished in Missouri v. Holland. The point is that the concept of "domestic jurisdiction" is irrelevant to the constitutional question whether an ügreement relates to our foreign relations and has some foreign policy purpose.
African countries. The state of human rights in the United States, in turn, is sharply scrutinized by others, and our domestic human rights policies are developed with at least one eye and one ear to the world outside. For decades now, "in the ordinary intercourse of nations," human rights have "been made subjects of negotiation and treaty." Surely, the Constitution does not prohibit the United States from negotiating and adhering to such treaties.
Beneath the "neo-Bricker" doctrine that would deny the United States the power to adhere to such treaties lies, perhaps, the view that the United States should not be negotiating with other nations on "internal matters," whether those of South Africa, Russia, Hitler's Germany, Castro's Cuba, or the United States. That is a view of foreign relations which this country rejected almost 100 years ago. Today such a foreign policy is impossible, even were it desirable. The United States cannot avoid involvement in such "internal affairs” of other countries and it cannot keep other nations out of ours. The price of international influence and concern is reciprocity. Indeed, the price of United States leadership in world affairs may involve our own “internal affairs” in our foreign relations even more than the "internal affairs" of others.
Constitutional interpretation has, for more than thirty years, favored the broadest construction of the power to govern. The Supreme Court long ago recognized that where power is granted it may be exercised to the fullest. No court today would say that the commerce power is limited to matters which affect commerce in one particular way or to a limited degree; indeed, it has been extended farther than ever to support new departures in human rights legislation in the United States. The spending power has emerged as a principal instrument for promoting general welfare, including much that comes within contemporary conceptions of human rights." A hundred years after its adoption, the fourteenth amendment is being read to warrant novel and far-reaching legislation to promote human rights in the United States.78 It is difficult to believe that any court would insist on a more grudging and niggardly view of the treaty power in order to prohibit American participation in human rights conventions. It is difficult to believe that any court would find that the Constitution renders the United States impotent to do what all other nations can do-participate in one of the major developments of international life
76 E.9., Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964).
77 See, e.g., Steward Mach. Co. v. Davis, 301 U.S. 548 (1937).
78 E.g., Katzenbach v. Morgan, 384 U.S. 641 (1966). See also United States v. Guest, 383 U.S. 745 (1966).
in the last half-century. It is difficult to believe that any court would find in the Constitution a requirement that treaties deal with matters of “international concern," or "affect the foreign relations" of the United States, in some special narrow sense unrelated to the realities of international intercourse today.
There is room for difference about the desirability or effectiveness of international human rights covenants, or of American participation in such covenants. There is, however, no excuse for lawyers to fabricate constitutional doctrine to confuse the issue. Almost ten years ago, in the pages of this Review, I wrote:
Many will have deep sympathy for those who dream of old days thought good, or better; who yearn for decentralization even in foreign affairs and matters of international concern, for limitations on federal power, for increase in the importance of the States; who thrill to a wild, poignant, romantic wish to turn back all the clocks, to unlearn the learnings, until the atom is unsplit, weapons unforged, oceans unnarrowed, the Civil War unfought. The wish remains idle, and the effort to diminish power in this area for fear that it may not be used wisely is quixotic, if not suicidal. It is not the moment to attempt it when all ability, flexibility, wisdom are needed for cooperation for survival by a frightened race,
on a diminishing earth, reaching for the moon. The lesson is more urgent than ever; it is yet to be learned.
70 Low of the Land 936.
Mr. HENKIN. It is wholly appropriate under the Constitution for the United States to adhere to all these human rights agreements. Nor are these treaties in any sense inconsistent with the legal prerogatives of States rights."
Almost 60 years ago the Supreme Court resolved, yet again, that there are no proper States rights objections to U.S. adherence to such treaties. At that time, indeed, the Court held that the United States could conclude a treaty even on matters on which Congress had no power to legislate.
U.S. adherence to these human rights conventions would be permissible even if their subject matter were not also subject to the legislative power of Congress. That is the lesson of Missouri v. Holland, 252 U.S. 416 (1920). In fact, however, the subjects of the conventions before you all are within the legislative power of Congress. Properly and reasonably construed, almost all of the provisions of the agreements already are required, either by the Constitution or by acts of Congress, and the few that are not already required could properly be required by Congress.
În my view, then, there are no meaningful States rights issues to concern you.
Of course, treaties are subject to the Bill of Rights. That was decided definitively, I believe, in Reid v. Covert, 354 U.S. 1 (1957) in the plurality opinion of Justice Black, and no one has ever questioned that since.
There is one provision in the International Covenant on Civil and Political Rights which raises serious questions under the first amendment. Article 20 of the covenant provides that any propaganda for war shall be prohibited by law; and any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Unless these provisions were construed to apply only to propaganda that incites to violence or other unlawful action, U.S. compliance with that provision would violate the first amendment. A reservation to that article is necessary. That, I believe, incidentally, is the only reservation that is constitutionally required. Of course, there might be some reservations which we might like for some other reasons, but I think most of those which have been suggested are undesirable for any reason.
The implementation of these conventions also would raise no serious problems. Since the agreements largely require what the United States is already doing under the Constitution and laws of the United States, the United States would be in compliance with almost all of the provisions without the need for special implementation.
A few provisions might require implementation by further legislation, and such legislation could be enacted by Congress; or some implementation could be left to the States. We can do that without any reservation, although the United States would be responsible for making sure that the States acted and that the provisions were carried out.
I think, Senator, I have stayed within my 7 minutes and briefly have addressed the principal questions put to me by Senator Church's letter. Fuller answers on the constitutional questions may be found in the 1968 article to which I referred.