Time: Wed Jul 30 06:43:39 1997
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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)

> 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
>     (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
>      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
>      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.
>      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
>     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
>     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
>     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
>     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

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