xt7msb3wtd0h_19 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Chief Justice - treaties - steel case text Chief Justice - treaties - steel case 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_163/Folder_8_9/Multipage2019.pdf 1953 1953 1953 section false xt7msb3wtd0h_19 xt7msb3wtd0h TREATIES AND EXECUTIVE AGREEMENTS

(Report on the FebruaryaApril, 1953, Hearings
Before The Senate Judiciary Committee on The Bricker
Amendment (S.J.Res. l) and the American Bar Associ~

ation Amendment, 3. J. Res. 43)a

April 20, 1953 Alfred J. Schweppe
657 Colman Building
Seattle 4, Wash.

Note: The writer is Chairman of the American Bar Association’s Committee
on Peace and Law, which has had these subjects under intensive study for almost
four years. Except insofar as it refers to official resolutions of the American
Bar Association, or reflects the opinions of the Committee on Peace and Law as
embodied in its several printed reportsg this paper represents the writer’s own
views, and is not to be considered as the views of the American Bar Association,
which speaks only through official resolutions of its House of Delegates, and

between meetings of that House, of its Board of Governors.

 

 INDEX

Quotations (Dulles, Wilson, Jefferson) . . . . . . .

II’heBasicIssue.....................

II

Mr. Dulles‘ Position at Louisville, Kentucky, on April
12, 1952 I I U I 0 I I l i U U 0 I l I I I I l 1 I l I 1

Mr. Dulles’ Switch at Washington, D. C. on April 6, 1953
The Root of the Constitutional Problem
The American Bar Association Proposal .
(a) Treaties . . . . . . . . . . .
(b) Executive Agreements . . . . .
lnadequacy of Alternative Remedies . . . .
History of American Bar Association Proposal

No Change in Present Method of Negotiating and
Ratifying Treaties . . . . . . . . . . . . . . . . .

No Interference With United States Treaty Negotiations
No Interference with the United Nations . . . . . 0
Voting Requirements for a Constitutional Amendment
Senator Bricker‘s Great Contribution . .

Conclusion 0 o o a o o u o o o 0 t u o o

 

 "Treaty law can override the Constitution * * *

They Zfreatie§7 can out across the rights given the

people by the constitutional Bill of Rights."

....JOHN FOSTER DULLES,
before Regional Meeting
American Bar Association,
Louisville, Kentucky,
April 12, 1952.

"The history of liberty is a history of the limita-

tion of governmental power, not the increase of it."

~4WOODROW WILSON

"In questions of power, let no more be said of

confidence in man, but bind him down from mischief by

the chains of the Constitutiono”

u-JOHN'W. DAVIS,
quoting Thomas Jefferson
in the argument in the
Steel Seizure Cases,
345 U.S. 579.

 

 TREATIES AND EXECUTIVE AGREEMENTS

 

I
THE BASIC ISSUE

The proposals of Senator Bricker of Ohio and of the American
Bar Association to amend the Constitution of the United States respect-
ing treaties and executive agreements raise great questions of constitu—
ticnal law, and not, as may be inferred from Mr. John Foster Dulles‘
testimony, questions of temporary State Department policy.

 

The issue has been described by that distinguished lawyer and
scholar, Dr. George A. Finch, of Washington, D. 0., editor-and-ohief of
the American Journal of International Law, as the greatest constitutional
issue since the controversy over the Bill of Rights, —- involving as it
does the question of subversion of the Constitution and the Bill of Rights
by the treaty method. Dean Clarence Manion, of South Bend, Indiana, now
retired from the Law School of Notre Dame University, and for many years
Professor of Constitutional Law, and a strong proponent of the amendment,
has characterized it as the "hottest constitutional issue" since the
CivilWaro

 

II
MR. DULLES2 POSITION AT LOUISVILLE, APRIL 12, 1952

Mr. John Foster Dulles, now Secretary of State, before the
Regional Meeting, American Bar Association, Louisville, Kentucky, April
12, 1952, made an address entitled "The Negotiation of Treaties."
(American Bar Association Journal, June, 1952, p. 487). In the course
of this address he made the following remarks:

 

"The treaty-making power is an extraordinary power
liable to abuse. Treaties make international law and
also they make domestic law. Under our Constitution
treaties become the supreme law of the land. They are
indeed more supreme than ordinary laws, for congressional
laws are invalid if they do not conform to the Constitu-
tion, whereas treaty law can override the Constitution.
Treaties, for example, can take powers away from the
Congress and give them to the President; they can take
powers from the state and give them to the Federal
Government or to some international body and they can
out across the rights given the people by the constitu—
tional Bill of Eighteen

 

 

 This address was carefully prepared in writing and released to
the press in advance, and expressed his considered judgment before a com-
petent audience of distinguished lawyers and judges, (1) that the treaty
power is ”an extraordinary power liable to abuse;" (2) that "treaty law
can override the Constitution;" and (5) that "treaties can out across the
rights given the people by the constitutional Bill of Rights."

III
MR. DULLES' SWITCH, AT WASHINGTON, D. 0., APRIL 6, 1953

In the hearing on April 6, 1955, before the United States Senate
Judiciary Committee, on the so-called Bricker and American Bar Association
proposals to amend the Constitution (respectively S. J. Res. 1 embodying
the Brisker Amendment, and S. J. Res. 45, by Senator Wetkins of Utah,
embodying substantially the American Bar Association Amendment), he took
the view that he had checked the dangerous trend of the State Department
in the treaty field; and that now an amendment to the Constitution was
"unnecessary" and itself "dangerous."

Mr. Dulles made in the same Judiciary Committee hearing, again
in writing, such statements as "I believe the concern was then a legitimate
one" (p.2); that "I have been sympathetic to the point of view reflected
in S. J. Resolution 1, and I have so expressed myself" (p.5)5 that "I
have" indulged "in independent draftin efforts of my own" (p.3)3 that "this
whole matter needs further study" (p03 ; that "the fears are hypothetical"
(p07); and that "an amendment to the constitution is unnecessary” (p.7).

To all of which, one may counter:
(a) How can "legitimate concern" in the space of five pages
of carefully prepared written testimony so rapidly become "hypothetical

fears" and then the "amendment unnecessary"?

(b) Why should we have further study if "an amendment is
unnecessary"?

(c) If the "concern” was ”legitimate" -- a good word, mean—
ing "grounded on a sound legal foundation" u- how can a sudden change in
policy, good, at most, for only his administration, make the "concern" less
"legitimate"?

(d) Is not the "legitimate concern" the very reason for the
sudden change in treaty-making policy?

(e) Is not the statement that "the fears are hypothetical" flatly

contradicted by the sudden and drastic change in policy w a change which
could, under pressure, at some time be reversed overnight?

1-43-

 

 (f) In the light of his own public statements - at Louisville,
on April 12, 1952, when he was not in office, and at washington D. 0., on
April 6, 1955, when he was in office - how can he, on the latter date,
consistently assert that now "the fears are hypothetical," and that "an
amendment to the constitution is unnecessary"?

(g) Is it not a fact that tWo days later, on April 8, 1955,
Mr. Herman Phleger, his legal adviser (who undoubtedly approved Mr. Dulles‘
written statement of April 6, 1955) appeared before the United States Senate
Foreign Relations Committee and advocated ratification of a treaty waiving
constitutional rights and immunities of American citizens, civilian and
military, in Europe? (See Chicago Tribune, April 9, 1952.)

(h) Does not that very treaty "override the Constitution" and
"out across rights given the people by the constitutional Bill of Rights"?

(i) Is it not a fact that in that treaty which waives consti—
tutional rights and immunities of American citizens, no corresponding
or reciprocal jurisdiction is obtained over the nationals of the other
treaty countries when they are in the United States?

(j) Is the real reason for opposition to a constitutional
amendment, a desire to continue this policy?

(k) Has there, in fact, been a cleanucut change of policy?

It will be apparent from the foregoing that the prepared state—
ment of the Secretary of State is studded with contradictions and non-
sequiturs. Starting with the concept that our "concern" was "legitimate"
and ending with the concepts that "the fears are hypothetical" and that "no
amendment is necessary," his reasoning has come full circle.

His reasoning was inconsistent, and he befogged an issue of
constitutional law with one of temporary State Department policy. Indeed
he offered no hope to those many millions who have a "legitimate concern"
to protect the Constitution of the United States against subversion by
treaty law, for themselves, their children, and their children's children.

In substance, Mr. Dulles' argument was that we should trust his,
and all succeeding administrations. His argument is a negation of the
theory of constitutional limitations on which our government rests. The
American people have confidence in constitutional restraints, enforceable
by an independent judiciary, above all confidence in men. (See Thomas
Jefferson’s statement on Page 1.)

The American Bar Association and Senator Bricker desire an
amendment that will protect the United States Constitution and the

 

 American system of government established in the Constitution, including
the Bill of Rights, that will prevent treaties from becoming internal
law within the United States, except to the extent made so by Congress,
just as in the case of any other federal statute; and that will set a
positive standard or limitation that will enable the courts to hold
invalid treaties that violate the Constitution.

Nothing that Mr. Dulles has said before the Senate Judiciary
Committee will deter these proponents from their firm purpose of getting
this amendment before the American people for adoptiono

The proposal of a constitutional amendment to keep treaties
and executive agreements Within proper constitutional bounds has the sup-
port of Senator Brisker and 64 other senators as cosponsors.

In addition to the favorable resolutions of the American Bar
Association, which represents, as nearly as may be, the entire organized
legal profession of the United States, and which started this movement
(See acknowledgment of Senator Brisker on the floor of the Senate in
Congressional Record, February 7, 1952, P. 923), the proposal of a con-
stitutional amendment was approved in December of 1952, by the National
Association of Attorneys General of the United States, comprising the
heads of the legal departments of each of the 48 stateSo

 

Similar resolutions have been adopted by many nation-wide organ-
izations, including among others, such well-known organizations as the
American Legion, Veterans of Foreign Wars, Marine Corps League, Catholic
War Veterans, Kiwanis International, Sons of the American Revolution,
Daughters of the American Revolution, and the Women's Patriotic Conference
on National Defense, representing twenty-nine leading women's organiza—
tions throughout the United States with a membership of millionso

IV
THE ROOT OF THE CONSTITUTIONAL PROBLEM

There is very grave doubt indeed whether the Supreme Court can
ever hold unconstitutional any treaty made "under the authority of the
United States," which is the only requirement concerning a treaty in the
Constitutions (Art. VI; Art. III.) "It is open to question whether the
authority of the United States means more than the formal acts prescribed
to make the convention." (Mr. Justice Holmes, in Missouri v. Holland,
252 U. S. 416, 423 (1920)). If a treaty is made "under the authority of
the United States,” it becomes, by express language of the Constitution,
”the supreme law of the land.”

Obviously, it is Mr. DullesR opinion (or was at Louisville,
and he did repudiate it in the recent Senate hearing) that there is no
constitutional limitation on the treaty—making power, which is justiciable
in any court, as evidenced by his Louisville statement that "treaty law can

'05-.

 

 override the Constitution;" and that treaties "can cut across the rights
given the people by the constitutional Bill of Rights.“ He was talking
about what treaties can lawfully do under the Constitutionc

A like View as to what can be done under the treaty~making power
by way of ”overriding the Constitution" is advocated by the Hon. John J.
Parker, Chief Judge of the U. S. Court of Appeals for the Fourth Circuit,
in the August, 1952, issue of the American Bar Association Journal,
(pp. 641, 643), in an article entitled "An International Criminal Court:
The Case for its Adoption." He says such a court, ignoring American
constitutional rights, can be set up under the treaty-making power.

 

Similarly, the Section on International Law of the American
Bar Association, comprising many international lawyers, says in its
Section Report presented to the House of Delegates of the American Bar
Association at the Midwinter Meeting, February 25—26, 1952:

 

"So far as the requirement of indictment by grand jury
and trial by jury are concerned, these apply only to trials
in the federal courts, and can have no application to an
international court set up by a group of nations in the exer—
cise of their-treaty-making power .....there is no reason why
such courts may not be created in the exercise of the treaty—
making power.“

 

 

 

In other words, it is claimed that the United States government
can provide under the treaty-making power for the trial of American citi-
zens abroad, for offenses committed here, by methods and in places (see
Sixth Amendment) which the Constitution forbids.

There is thus a large body of legal opinion, including that of
Mr. Dulles, that "treaty law can override the Constitution;” and that
treaties "can out across the rights givon the people by the constitu-
tional Bill of Rights."

Parenthetically, it is most interesting that the very people
who claim that treaty can take away American rights protected by the
Constitution and the Bill of Rights -- Secretary Dulles, Judge Parker,
and the Section on International Law -- are the very people who insist
that no constitutional amendment is necessary.

But let us further examine the legal problem.

While there are some venerable Supreme Court dicta, in cases
where the point was not involved, such as Doe v. Braden, l6 How. 635,
657 (1855); The Cherokee Tobacco, 11 Woufeis, 6205171870); Holden v.
933:, (1872) 17 Wall. 211, 243; Gecfroy v. Riggs, 1:55 U. S. 258, 267_(T889)
that a treaty cannot violate thedCofistitutiEEI—nor "authorize what the

 

 

 Constitution forbids,” or change "the nature of the government of the
United States or the relation between the States and the United States,"

no treaty has ever been held invalid (U, S. v. Thompson, 258 Fed. 257,

2603 Professor Zechariah Chafee, Jr., in Harvard-Law School Record,
February 21, 1952); and there are contrary judicial expressions such as
that what the President and Senate do in foreign relations is a political
question "not subject to judicial inquiry or decision;" (Oetjen v. Central
Leather Company, 246 U. S. 297, 502 (1918); U. S. v. CurtissAWright Corp,
299 U. s. soéj‘e19 (1936); U. s. v. Sandoval, 167 U. s. 278; p:_s. v.
Domestic Fuel Corporation, 71 F. ZZdS 424, 430-1; Baneo de Espana v. Federal
Reserve Bank, 114 F (2d) 459, 442; Z. & Fe Assets Corporation v. Hall, 114

F (2d) 464, 468.

Then there are other judicial expressions, beginning with Ur.
Justice Chase of the Supreme Court in'Ware v. Hylton (1796), 3 Dall. 199,
257, to the decision of the Ninth Circuit Court ofiAppeals in U. S. v. Reid
(1934) 75 r (2d) 153, that "it is doubtful whether the courts have the
power to declare the plain terms of a treaty unconstitutional."

 

 

 

 

Then there is the statement of the late Chief Justice Charles
Evans Hughes in 1929 before the American Society of International Law
that the treaty power ”has no explicit limitation attached to it," and
that "I should not care to voice an opinion as to an implied limitation on
the treaty—making power. The Supreme Court has expressed a doubt whether
there could be any such; that is, the doubt has been expressed in one of
its opinions.” (Proceedings of American Society of International Law,
1929, pp. 194-196).

Then there is most recently the report (June, 1952) of the dis-
tinguished Committee of the New York State Bar Association (consisting of
the Honorable William D. Mitchell, former Attorney General of the United
States, John W} Davis, Lewis R. Gulick, John J. Maokrell, and Harrison
Tweed), opposing the proposed International Covenant on Human Rights in
its present form, but expressing a genuine fear that the Supreme Court
of the United States might uphold it, because "it would place a heavy strain
on the Supreme Court to hold that the treaty is invalid."

As above noted, the problem is very grave because under the
Constitution a statute to be valid, must be made "in pursuance” of the
Constitution (Art. V1.3 Chief Justice Marshall so held in the last two
paragraphs of the great decision in Marbury v. Madison, 1 Craneh 157, 180
(1803). But there is no requirement whatever concbrning a treaty except
that'it be made ”under the authority of the United States” (Art. VI, Art.
III), a distinction expressly noted by Mr. Justice Holmes in Missouri v.
Holland (1920) 252 U. S. 416, 455. Because the Constitution sets no
standard for treaties except that they must be made "under the authority
of the United States,” no one can know, when the great question finally
comes up for direct decision, whether the Supreme Court will not say:

 

 "we are limited to considering Whether this treaty was made ‘under the
authority of the United States,1 that is, whether it was regularly made
by the President, with advice and consent of two-thirds of the Senators
present; and if we find that it was so made, then the Constitution makes
it 'the supreme law of the land,‘ to be applied by the courts as written,
state constitutions and laws to the contrary notwithstanding as well as
federal laws and constitutional provisionsa"

In other cases the Supreme Court has said that the treaty power
extends "to all proper subjects of negotiation between our government and
foreign nations,“ or otherwise stated, "to all proper subjects of interna~
tional concern." Asakara v. Seattle, 265 U. S. 552, 541, and cases cited.
However, these cases again end us EH a 221 de sac, for the following reasons:

1. The court has said that what the President does in the field

of foreign relations, with the advice and consent of the Senate, is
"not subject to judicial inquiry or decision" (Oetjen v. Central
Leather Company, 246 U. S. 297, 302, U. S. v. CurtiSSAWright Corpora-

t:.on 299 U. S. .504, 319), because these are political questions

which the Constitution delegates to the discretion of the President,

with the advice and consent of the Senate, who is most competent

to judge what is required in the foreign field "to strengthen
friendly relations between the two nations" (Asakara v. Seattle,
supra), whereas the courts have no competence in this field and

are Without jurisdiction.

2. We encounter the asserted rule that any subject whatever
that is dealt with in a treaty between two or more nations be-
comes, by virtue of that fact, a "matter of international concern."
(Report of American Bar Association Committee on Peace and Law,
February 1, 1952, p. SJ

3. The State Department in 1950 issued an official bulletin,
with a foreword by President Truman, stating its position that
"there is no longer any real distinction between 'domestic’ and
'foreign’ affairs." (Opening sentence of State Department
Publication 3972, Foreign Affairs Policy Series 26, released
September, 1950). Under this doctrine any subject otherwise do-
mestic can be seized and by treaty made "a matter of inter~
national concern," presently beyond the jurisdiction of the
courtso

If it is correct, and it appears indisputable, that the Presi-
dent has the exclusive and absolute discretion "to determine when, how
and upon what subjects negotiation may be uI-ged" (U S. V~ Curtiss~Wright
Corp., 299 U0 3. 504, 319, approring a Senate Foreign Relatiovis Committee
Report made in 1816), conditiore d only by the power of the Senate upon
completion of the FreeidentVS negotiations to ratify or not, then the

 

 subject matter of treaties is solely a political matter, beyond the juris-
diction of the courts; and the judiciary has no jurisdiction in the treaty
field except (I) to determine whether the treaty was made "under the
authority of the United States," i.e. regularly made by the President with
the advice and consent of the Senate, (2) to determine what the treaty
means, i.e., how its language is to be fairly construed, and (3) to apply
it as written, in the light of such fair construction. Thus we end up
with the result that the President, by reason of his preserved peculiar
knowledge of foreign relations and of what is needed to promote friendly
intercourse between nations —- a field in which the courts are not com—
petent to deal -- he determines, in his discretion, what shall become

"the supreme law of the land" under Article VI, if the Senate concurs.
Thus there is neither an express, nor an implied, limitation on the treatyu
making power. (See Mr. Chief Justice Hughes’ statement ante, p. 7.)

Thus there is a formidable body of law on which Mr. Dulles, Judge
Parker, the Section on International Law, and others, undoubtedly predicate
the opinion that "treaty law can override the Constitution," and that
"treaties can out across the rights given the people by the constitutional
Bill of Rights." And who will say them nay, unless the people do it by a
constitutional amendment.

Hence, it would seem most appropriate that the ancient judicial
dicta concerning the existence of possible limitations on the treaty power
(such as, that "no treaty can violate the Constitution," nor "authorize
what the Constitution forbids,") nor change "the nature of the government

of the United States, or of the relation between the states and the United
States," which undoubtedly expressed the current belief of the judges who
wrote them,‘be firmly fixed in a constitutional amendment, so that the
independent courts will have jurisdiction to protect us "the people of the
United States" from treaties that violate the Constitution or undertake

to change the nature of our government.

While the expressions in some of the cases mentioned above con—
cerning lack of jurisdiction of the courts as to what is done in the field
of foreign relations are now disturbing, this would not have been so except
for the beta noir in this entire field, namely, Missouri v. Holland, 252
U. S. 416. That case removed a constitutional limitation, to wit, the
Tenth Amendment, which up to that time was supposed to exist as a limita-
tion and to provide the courts with jurisdiction to protect the constitu-
tional balance between federal and state power. In no prior case had
this question been expressly raised, unless in New Orleans v. United States,
10 Pet. 292 (1856), hereafter referred to.

In Missouri v. Holland, which is the famous migratory bird case,
The Supreme Court in 1920 decided for the first time, in an opinion by Mro
Justice Holmes, that Congress could acquire legislative power under a
treaty, even though in the absence of treaty Congress had no constitutional

 

 power to legislate on the subject matter, which was otherwise reserved to
the states and to the people under the Tenth Amendment. The court said
it was interpreting the Constitution "in the light of our whole exper-
ience and not merely in that of what was said one hundred years ago."

The court thus rejected the view, urged in the briefs, maintained by
Thomas Jefferson in his Manual of Parliamentary Practice as folIOWS:

"By the general power to make treaties, the Constitution
must have intended to comprehend only those objects which are
usually regulated by treaties, and cannot be otherwise regulated.

"It must have meant to except out all those rights reserved
to the states; for surely the fresidgnt and the Senate cannot do
by treaty what the whole government is interdicted from doing in

any way.“

The first edition of Jefferson’s book expressing this view came
out in 1801, ten years after the first ten amendments were adopted in 1791.
It had a wide circulation and went through six editions prior to Jefferson’s
death in 1825, and many more afterward, and expressed the commonly held
view of founding fathers that the Tenth Amendment of 1791 had blocked any
real possibility of a court's holding that the treaty power could invade
the reserved rights of the states.

At the time the adoption of the original Constitution was under
debate, Patrick Henry and Richard Henry Lee contended that the treaty
power as set up was unlimited and might be used to take away the people’s
rights, with reference to which Jefferson commented, "If the treaty power
is unlimited, then we have no Constitution."

Jefferson's view, widely circulated for decades, was held by
many public men and scholars. It found expression in the decision of
the Supreme Court in New Orleans v. United States, 10 Pet. 662, 756 (1856)
that "Congress cannot by legislation enlarge the federal jurisdiction,
nor can it be enlarged under the treaty—making power." More fully, the
court said: '

"Under this treaty Louisiana was ceded to the United States
in full sovereignty, and in every respect, with all its rights
and appurtenances, as it was held by the Republic of France, and
as it was received by that republic from Spaino And it is in-
sisted that the same rights of jurisdiction and property Which
appertained to the sovereign of Spain, under its laws and regulau
tions, were, by the treaty transferred to the United States . . ."

p. 752 .

"But if the King of Spain . . . only possessed a limited
jurisdiction over it (the land), principally, if not exclusively,

 

 for police purposes, was that right passed to the United States
under the treaty? . . . Can the federal government exercise this
power?" (p. 756)

”The government of the United States, as was well observed
in the argument, is one of limited powers” It can exercise author-
ity over no subjects, except those which have been delegated to it.
Congress cannot, by legislation, enlarge the federal jurisdiction,
nor can it be enlarged under the treaty-making power . . . .

 

 

"It is very clear that, as the treaty cannot give this power
to the federal government, we must look for it in the Constitution . . .

"All powers which properly appertain to sovereignty, which
have not been delegated to the federal government, belong to the
states and to the people."

The court, on the above reasoning, concluded that the United States
had acquired no police jurisdiction over these lands in Louisiana, but that
the police control was within the state of Louisiana.

But Mr. Justice Holmes in Missouri v. Holland held that the fed-
eral jurisdiction could be enlarged By the Ersaty-making power, and that
Congress could acquire legislative power, if a treaty was first made, that
Congress would not otherwise have under the Constitution.

It is arguable that New Orleans v. United States, held a treaty
invalid at least in part, in that the treaty, implemented by several acts
of Congress, could not pass to the United States police control over
certain lands in Louisiana, although perhaps the case can be explained on
the ground that even if the police control over the lands passed from Spain
and France to the United States, this police power was somehow lost when
Louisiana became a state on the same footing as other states. In any
event, the reasoning follows the view of Jefferson and the Founding Fathers
and conflicts with Missouri v. Holland, which holds that police authority
over migratory birds in Missouri could be obtained by a treaty with Great
Britain, and that Congress could acquire legislative power under the treaty
that it did not otherwise have under the Constitution.

 

In Holmes v. Jennison, 14 Pet. 540, 569 (1840), the Supreme
Court, in almost Jefferson’s language, said that the exercise of the
treaty power included those subjects which "had usually been made subjects
of negotiation and treaty; and which are consistent with the nature of our
institutions, and the distribution of powers between the general and state
governments." (Italics supplied). In Holden v. Joy, 17 Wall. 211, 243
(18725 an almost identical statement was made,

 

 

 But Missouri v. Holland, refusing to be bound by Jefferson’s
view, held that the case must not be considered merely in the light ”of
what was said one hundred years ago."

The Committee on Peace and Law of the American Bar Association
believes that Jefferson and his generation, and those who followed, were
right in their construction of the treaty power in the Constitution after
the adoption of the first ten amendments in 1791, and that the Constitu-
tion should be restored to the meaning which it had in the view of Jefferson
and other writers prior to 1920, when Missouri Va Holland was decided; and
that the traditional constitutional balance betWeen federal and state power
should be re~established.

The logical end of the lovers of Missouri v. Holland is the
establishment of a federal government of unlimited powers by the treaty
method, pushing aside state constitutions and laws and federal laws and
constitutional provisions -- a result that Would have sent the Founding
Fathers to an early grave. This is the logical end result, notwithstand—
ing a few dicta of possible limitations in Missouri v. Holland not neces~
sary to the decision, and probably not justioiable in any court. As soon
as Missouri v. Holland came down, the probable need of a constitutional
amendment in the near future was almost immediately predicted. L. L.
Thompson, "State Sovereignty in the Treaty—Making Power," 11 Cal. Law
Review, 242 (1922).

 

As against the claim of Mr. Dulles that we now have no bad trea—
ties, one could cite several, such as the warsaw Convention on international
aircraft disasters, limiting liability for death to $8,500,00, a grossly
inadequate sumu But attention will be directed to the legal consequences
of Articles 55 and 56 of the United Nations Charter covering, and intended
to cover, in the broadest terms, civil, political, economic, social and
cultural matters ~~ the whole gamut of human activity —~ and binding the
United States to take appropriate action —— a commitment which under Foster
v. Neilson, 2 Pet. 253, 314 (1825), (decided by Chief Justice Marshall;
is directed to Congress. Under Missouri v. Holland, these clauses in the
United Nations Charter create a federal gOVernment of unlimited powers,
wi.th complete authority in Congress to legislate on any subject of human
endeavor, pushing state laws and constitutions out of the way willy—nilly,
and leaving us, in Jefferson‘s Words, with "no constitution."

 

Hereafter, every time an Act of Congress comes before the courts
for a test of its validity, the court must first examine the validity of
the legislation under the Constitution, and, failing there to find an
adequate constitutional basis for the legislation, must then examine the
statute under the provisions of the United Nations Charter; and if the
court finds that the statute falls somewhere within the whole gamut of

 

 human activity embraced in the Charter, the court will doubtless say that
under Missouri v. Holland, the statute is valid, even though