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[From the University of Pennsylvania Law Review, Vol. 116, No. 6, April 1968)
THE CONSTITUTION, TREATIES, AND
LOUIS HENKIN +
By a coincidence of which, no doubt, few were aware, the year 1968, the centenary of the fourteenth amendment to the Ainerican Constitution, was designated by the United Nations General Assembly as "International Human Rights Year.” On such ceremonial occasions, coincidence alone might warrant the exploration of a possible relationship between the occasions celebrated. It is in fact not difficult to find significant links between human rights as enjoyed under the fourteenth amendment and other provisions of the American Constitution, and human rights as they exist in other countries. The actions of the United States have allected human rights in other nations, as well as international efforts to improve the observance of such rights.
While influence can never be measured and often cannot be proved, one can assert with confidence that the United States has inspired ideas, movements, laws, and events which have promoted human riglits in other countries. The American Constitution, particularly the Bill of Rights and the fourteenth amendment, have left their traces in a hundred constitutions and in thousands of laws, charters and manifestus." American concern about human rights has been exported by American foreign policy and diplomacy, in protests on the inistreatment of minorities by Czars and Hitlers; in peace treaties requiring the vanquished to respect the rights of minorities (after World War I), or of all persons (after World War II); in the growing protections of customary international law assuring justice to aliens; in burgeoning doctrines assuring basic rights to all; in the human rights provisions of the UN Charter; & in the UN Declaration of Human Rights; 4 in covenants drafted under the auspices of the UN; and in conventions and institutions of European and other regional bodies.
+ Lines Professor of Law, Columnbia University. B.A. 1937, L.H.D. 1963, Yeshiva University; LL.B. 1940, Harvard University. Member, New York Bar.
1 G.A. Res. 1961, 18 U.N. GAOR Supp. 15, at 43, U.N. Doc. A/5515 (1963).
” Some constitutions were draited under direct Ainerican authority or influence; for example, those of Liberia, the Philippines, the Federal Republic of Germany and postwar apan. For similarities between the American Constitution and others, see synoptic talles in 3 A. Prat.EE, CONSTITUTIONS of Nations 556-03 (1950).
3 U.N. CHaki el art. 1, para. 3, art. 13, para. Ib, arts. 55-72. 4 G. A. Res. 217, U.N. Doc. A/810 at 71-77 (1948).
Influence, of course, has not been a one-way street. Many of the rights protected by the Constitution owe much to French and British antecedents. More recently, the ideas and experiences of others have helped bring our eighteenth-century Constitution up to the needs of a new age.
Our constitutional fathers were concerned with the protection of "natural" individual freedoms from too much governmental interference; only after a world depression did Congress begin to provide "rights of welfare," and it was not easy to persuade the Supreme Court of the constitutionality of such legislation. New rights of equality and new conceptions of freedom required constitutional reinterpretation and bold legislation. The UN Charter and the UN Declaration of Human Rights have been invoked in American courts to supplement rights protected by the Constitution. Political forces--the existence of United Nations, the competition of Communist ideology, the influence of new nations-surely have had an impact on the actual state of human rights in the United States, and particularly on the rights of the Negro.
In one respect, however, the United States has resisted the influence of others within our borders and has refused to cooperate in promoting rights elsewhere. Although the American governinent has insisted that observance of human rights is indispensable to international peace and security; although our own observance of human rights is, in most respects, as high as any in the world; although the United States has obligated itself to cooperate with other nations and international organizations to promote human rights; although American representatives have played principal roles in drafting declarations and covenants advancing freedom and justice—the United States has generally refused to adhere to international efforts to establish common minimum standards for individual human rights. The Genocide Convention has vainly sought the consent of the United States Senate since 1949.10 The United States did not sign the convention,
0 Compare United States v. Butler, 297 U.S. 1 (1936), with Steward Mach. Co. v. Davis, 301 U. S. 548 (1937).
8 See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954); Griffin v. Illinois, 351 U.S. 12 (1956).
7 Civil Rights Act of 1961, 78 Stat. 241-68 (1964), 28 U.S.C. § 1447 (d) (1964), 42 U.S.C. $$ 1971, 1975a-19754, 2000-2000h-6 (1964).
8 Compare Oyama v. California, 332 U.S. 633, 649-50 (concurring opinion), 673 (concurring opinion) (1948), with Hurd v. Houge, 162 F.2d 233, 245-46 (D.C. Cir. 1947), at'd, 334 U.S. 24, 34-35 (1948), und Sci Fujii v. State, 217 P.24 481, 486-88 (Cal. Dist. Ct. App. 1950), ut'd on other grounds, 38 Cal. 2d 718, 242 P.2d 617' (1952).
U.N. CHARTER arts. 55-56.
10 Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 278, entered into force Jan. 12, 1951. President Truman transmitted the Convention to the Senate for its consent on June 16, 1949, see 95 Cong. Rec. 7825 (1949).
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 riglıts which the UN was drafting.12 When President Kennedy abandoned the Dulles policy and sent three minor conventions to the Senate, 13 the Foreign Relations Committee failed to recommend consent to two of them.'t
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.16 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 riglets 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 hunian 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
11 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (1954).
12 32 DEPT OF STATE Bull. 820, 822 (1955); see note 69 infru and accompanying text.
13 See note 66 infru.
14 109 Cong. Rec. 13046 (1963); 113 Cong. Rec. 15750-51 (daily ed. Nov. 2, 1967).
16 The principal version of the Bricker Amendinent, prepared by the American Bar Association, is contained in Heurinys on S.J. Res. 1 und S.J. Res. 43 Before u Subcomm. of the Senate Comin. on the Judiciury, 83d Cong., 1st Sess. at 35-36 (1953).
10 American Bar Association, Report of the Stunding Committee on Peace and Law Through United Nations: Iluman Rights Conventions and Reconimentulions, I Int'l LAW. 600, 607 (1967); see Heurinys on Human Riyhts Conventions Before u Subcomm. of the Senate Comm. on Foreiyn Relations, 90th Cong., 1st Sess., pussiin (1967).
17 American Bar Association, Report of the Standing Committee on Peace und Luw Through United Nations: bluman 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 Akms CONTROL), particularly in chapter III, at 25-46. See alsu Henkil, The Treaty Mukers and the Luw Mukers: The Law of the Land and Foreign Relu. tions, 107 Ú. PA. L. Rev. 903 (1959) (hereinafter cited as Law of the Landl; Henkin, The Treaty Mukers und the Law Makers: The Niagara Reservation, 56 Colum. Lo 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.
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."
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,” 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. See L. OPPENHEIM, INTERNATIONAL Law § 501 (8th ed. H. Lauterpacht 1955). But cf. U.N. CHARTER art. 103.
20 Mr. Justice Holmes said: Acts of Congress are the supreme law of the land only when made in pur. suance 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 becaine 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
The prohibitions of the Constitution were designed to
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.. An early statement of such limitations is found in Jefferson's Manual of Parlimentary 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 riyhts 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.2
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 1.44.
23 Various statements to this effect going back to our early history are collected in H. TUCKER, LIMITATIONS ON THE TREATY-MAKING Power $82-51 (1915), and Mikell, The Extent of the Treaty-Muling lower of the President and Senate of United States, 57 U. Pa. L. Rev. 435, 436-38 11.1 (1909).
24 T. JEFFERSON, MANUAL OF PakllaMENTARY PRACTICE 110 (1876), quoted in 5 J. MORE, Digest OF INTERNATIONAL LAW JOZ (1906). See alsu the remarks of John Calhoun made in 1816, recorded in 29 DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 532 (1854).