Time: Wed Jul 30 06:43:39 1997
by primenet.com (8.8.5/8.8.5) with ESMTP id GAA15345;
Wed, 30 Jul 1997 06:30:29 -0700 (MST)
by usr01.primenet.com (8.8.5/8.8.5) with SMTP id GAA13397;
Wed, 30 Jul 1997 06:27:21 -0700 (MST)
Date: Wed, 30 Jul 1997 06:26:38 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Abuse of Treaty-making Powers (3/3) (fwd)
<snip>
>
> After Holland, the Curtiss-Wright, and the Pink cases were
>decided, experts in the field of international and constitutional
>law began to reappraise the treatymaking power. Among those who
>made such reappraisal was Mr. John Foster Dulles. Addressing a
>regional meeting of the American Bar Association in Louisville,
>Ky., on April 11, 1952, Mr. Dulles said:
>
>The treatymaking 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 in they do not
>conform to the Constitution, 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
>away from the States and give them to the Federal Government or
>to some international body, and they can cut across the rights
>given the people by their constitutional Bill of Rights.
>
> This is the classic statement on the danger of treaty law.
>No other statement describes so well the dangers which confront
>us today.
> Now I would like to split the amendment into its component
>parts, and briefly discuss each part in the order of its
>importance, in my judgment.
> (1) An executive agreement which conflicts with this
>Constitution shall not be of any force or effect (sec. 1).
> This is the most important part of this amendment. If
>executive agreements, not approved by either House of Congress,
>can override the Constitution, the President has the power of a
>dictator.
> (2) A treaty which conflicts with the Constitution shall not
>be of any force or effect (sec. 1).
> The next most important objective is to prevent treaties
>from overriding the Constitution. Of course, two-thirds rule
>affords some protection against the making of treaties which
>conflict with the Constitution, because every Senator has taken
>an oath to abide by and support the Constitution. No such
>protection surrounds the making of executive agreements.
> Section 1 would thus insure that the Constitution would set
>the limits on the substance of treaties and not merely prescribe
>the method of their making.
> Section 1 will put treaties and other international
>agreements where they belong--subject to the Constitution and
>invalid if they either conflict with it of are not made, as
>Federal laws must be, in pursuance of it. Any contrary inference
>from the language of the Constitution or from the cases would be
>impossible.
> There can be and there should be but one paramount law--the
>Constitution itself. Both laws of the United States and all
>actions of the Federal Government should be subject to it. The
>theory that treaties stand on a level with the Constitution
>itself or can alter or amend that Constitution, should not be
>allowed to develop or to exist.
> (3) An executive agreement shall become effective as
>internal law in the United States only through legislation
>(sec.2).
> There must be no possibility of one-man law in the United
>States even through such law does not contravene any express
>constitutional prohibition. The Pink case and related cases have
>given the President legislative power, the dimensions of which
>are yet unknown. We must repeal the judge-made exceptions to
>article I, section 1 of the Constitution vesting all legislative
>power in the Congress.
> (4) Legislation to make executive agreement effective as
>internal law must be valid in the absence of the agreement (sec.
>2).
> Executive agreements made by the president and approved by
>the Congress should not be effective to regulate subjects
>reserved to the States by the 10th Amendment. The President and
>the Congress obviously have such power today since the Pink case
>held that the President alone has such power.
> (5) Treaties and executive agreements should not be valid
>unless made in pursuance of the Constitution (sec. 1).
> Testifying in hearings on Senate Joint Resolution 1 two
>years ago, Secretary of State Dulles indicated that a treaty to
>effectuate internal social reforms, even though not in direct
>conflict with the Constitution, would not be one made in
>pursuance thereof. The Attorney General expressed the same
>opinion when he told the Senate Judiciary Committee:
>
> Our Federal system did not contemplate having treaties deal
>with matters exclusively domestic in nature.
>
> Addressing the annual meeting of the American Bar
>Association in September 1953, Mr. Dulles suggested that the
>treaty power would not be exercised in pursuance of the
>Constitution if it were used in the following manner:
>
>to effectuate domestic reforms, particularly in relation to
>economic and social matters, and to impose upon our country
>socialistic conceptions which many felt were alien to our
>traditional American ideals.
>
> The requirement in section 1 that treaties and other
>international agreements be made "in pursuance" of the
>Constitution will reinforce the implied limitation on the scope
>of international agreements which both the Secretary of State and
>the Attorney General believe to exist.
> (6) A treaty shall become effective as internal law in the
>United States only through legislation (sec. 2).
> Section 2 would prevent any treaty from being internal law
>of the United States simply by reason of its own existence.
>There would be no more self-executing treaties as domestic law.
>Legislation would be necessary to effectuate a treaty as internal
>law.
> Such requirement would place the United States in the same
>position as most other countries in the world. Only the United
>States and 2 or 3 other countries can a treaty become
>domestic law without implementing legislation. I ask, Mr.
>Chairman, that there be printed in the record of the hearings the
>address by Sir David Maxwell Fyfe, Secretary of State for the
>Home Department of Great Britain, at the American Bar Association
>meeting last August in Chicago. This article proves that the
>principles of section 2 of my amendment are in force throughout
>the British Commonwealth.
> Senator KEFAUVER. The address of David Maxwell Fyfe--I
>think it is probably better to print these in the appendix so as
>to interrupt the continuity of your remarks.
> Senator Bricker. That is entirely satisfactory.
> Senator KEFAUVER. Without objections, that will be
>done.
> Senator Bricker (continuing).
> (7) Legislation to make a treaty effective as internal law
>must be valid in the absence of treaty (sec. 2).
> This part of the amendment would repeal Missouri v. Holland.
> (8) Treaties should not be approved by a mere handful of
>Senators present and voting (sec. 3).
> Section 3 of the amendment requires a yea-and-nay vote on
>treaties, thus insuring the presence of at least 49 Senators.
> The nature of opposition to any limitation on the treaty
>power has been revealed in the current debate on United Nations
>Charter Revision. To be sure, many advocates of world government
>seek that end only through formal amendment of the Constitution
>of the United States. I have for many years commended such
>people for the respect they have shown for the spirit of our
>Constitution. In addition, I have always recognized that many
>sincere and high-minded people who oppose my amendment are not
>attracted by the world government idea. The fact remains,
>however, that the primary source of opposition comes from those
>who seek to set aside the Declaration of Independence and nullify
>many of our Constitutional protections.
> This has been made clear in the hearings before the Senate
>Foreign Relations Subcommittee on United Nations Charter
>Revision.
> Our Declaration of Independence would necessarily become a
>meaningless document and a historical relic if the United States
>were ever reduced to a province in any form of Federal world
>government. This recommendation, however, has been presented time
>and time again to the Senate Foreign Relations Subcommittee in
>the form of amendments to the Charter that would destroy the
>independence of the United States. Any Charter amendments that
>may be adopted at any U.N. Charter review conferences would no
>doubt be regarded as treaties, and hence would require the advice
>and consent of the Senate. If any such amendment that may be
>adopted undermine the concept of national sovereignty, they can,
>under our present Constitution, and the decisions, be made
>effective by the action of two-thirds of the Senators present and
>voting at any time over the next hundred years. We must,
>therefore, have a constitutional amendment that will assure the
>American people an opportunity to pass judgment on any revision
>of the United Nations Charter that compromises or undermines the
>independence of the Republic.
> A number of world government enthusiasts advance the
>reactionary theory that the United Nations Charter should be
>amended, if necessary by interpretation rather that by formal
>amendment. This theory is advanced in staff study No. 2 of the
>Senate Foreign Relations Subcommittee on United Nations Charter
>Revision. In fact, the authors of that remarkable document
>maintain that the Charter, without the advice and consent of the
>Senate, has already been validly and substantially amended. This
>is what they say:
>
>We are by no means examining the Charter that was drafted in San
>Francisco in 1945. We are examining the Charter of 1954 as it
>has been amplified by custom and usage, resolutions of the
>various U.N. organs and treaties * * *
>
> That the U.N. Charter can be amended without Senate approval
>is the most illiberal and reactionary proposition ever advanced
>in a Senate document. It is based on the wholly false premise
>that the United Nations Charter is a world constitution. The
>United Nations Charter is, Mr. Chairman and members of the
>committee, a treaty. The Senate advised and consented to its
>ratification in 1945. I shall never stop insisting that the
>United Nations Charter and all other treaties to which the United
>States is, or may become a party, are contracts rather than
>constitutional documents. That was the sense in which the
>Founding Fathers used the word "treaty" in the Constitution.
> For example, Hamilton explained the treaty power in the
>Federalist, No. 75, as follows:
>
>The power to make treaties * * * relates neitherto the execution
>of the subsisting laws, nor to the enaction of new ones * * * Its
> objects are contracts with foreign nations, which have for force
>of law, but derive it from the obligations of good faith. They
>are not rules prescribed by the sovereign to the subject, but
>agreements between sovereign and sovereign.
>
>
> To repeat, the advocates of world government seek to repeal
>the American Declaration of
>Independence. Some would do it by amending the United States
>Constitution, other seek the approval if the Senate on U.N.
>Charter amendments, while still others hope to reach world
>government by informal amendment to the United Nations Charter.
> Let me say here, that I have no objection to any person
>becoming a protagonist of any change that he wants to in the
>Constitution of the United States if it goes before the American
>people, as this amendment will, by approval of two-thirds of the
>Senate and the House, and through ratification of three-fourths
>of the States of the Union. But I do not want it done by
>informal amendment of the United Nations Charter.
> The end result is the same--the United States would cease to
>be a sovereign, independent nation. When independence is
>destroyed, our liberties are destroyed at the same time. That is
>one of the most important reasons why we need a constitutional
>amendment safeguarding the power to make treaties and executive
>agreements.
> At the same time I first proposed a constitutional amendment
>to safeguard the exercise of the treatymaking power, I said that
>the sovereign and the Constitution of the United States were at
>stake. In fact, they were imperiled. The danger is just as
>great today as it was then.
> That, Mr. Chairman and members of this committee, is the
>reason why I have resubmitted this resolution. I know of the
>great support of the American public for the amendment, and I
>know also of the great support that there is for the amendment in
>the Senate and House of Representatives, that it be submitted to
>the States for ratification. I know of no provision of the
>Constitution which more carefully safeguards the rights of the
>American people than the amendment section. I want the amendment
>section to be compiled with, not only with this amendment, but
>with any other change that might take place in the fundamental
>law of our land.
> I want to thank the chairman and members of the committee
>for their attention. There are others who will testify more in
>detail on the various provisions of the amendment and the case
>which are involved in it.
>
>-----------------------------------------------------------
>13 United States Congress, Senate, Subcommittee of the
>Committee on the Judiciary. "Treaties and Executive Agreements:
>S.J.R. 1." Hearings, 84th Cong., 4th Sess., April 27, 28, 29, May
>2, 5, 10, 11, and 12, 1955.
>
>
>
>
> ~~~Tell me not, in mournful numbers,
> Life is but an empty dream!
> For the soul is dead that slumbers,
> And things are not what they seem.~~~
>
>
>====Jilain can be reached via email at jilain@rt66.com
> or via IRC undernet channel #blackvault====
>
>
>-> Send "subscribe snetnews " to majordomo@world.std.com
>-> Posted by: Jilain <jilain@rt66.com>
>
>
>
========================================================================
Paul Andrew Mitchell : Counselor at Law, federal witness
B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine
tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night
email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU
website: http://www.supremelaw.com : visit the Supreme Law Library now
ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best
Tucson, Arizona state : state zone, not the federal zone
Postal Zone 85719/tdc : USPS delays first class w/o this
As agents of the Most High, we came here to establish justice. We shall
not leave, until our mission is accomplished and justice reigns eternal.
========================================================================
[This text formatted on-screen in Courier 11, non-proportional spacing.]
Return to Table of Contents for
Supreme Law School: E-mail