Time: Wed Jul 30 06:43:43 1997
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Date: Wed, 30 Jul 1997 06:27:08 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Abuse of Treaty-making powers (2/3) (fwd)

>          Hamilton, Jefferson, and Calhoun were among those--and
>there are many others--who believed  that treaties  could not  be
>used to alter legal relationships between citizens of the  United
>States or between American citizens  and their  own government.  
>That is not the law today.  Now  treaties are  being proposed  by
>the  United States  and its  specialized agencies  which seek  to
>regulate our civil and political liberties, our economic  system,
>and, indeed, almost every gamut of human activity.
>          4. Treaties cannot be used to take powers from the
>States and give them to the Federal Government.
>     Thomas Jefferson said:
>*  *  * surely the President and the Senate cannot  do by  treaty
>what the whole Government is interdicted from doing in any way.
>          Jefferson's interpretation of the Constitution was
>repudiated in Missouri v.Holland (252 U.S. 416 .(1920)).  Let  me
>say that that decisions was rendered when I was a  senior in  law
>school and I remember very well the discussion that took place at
>that time in  regard to  the import  of it  and the  meaning of  
>it--and I might say the dangers of the philosophy.
>          Senate Joint Resolution 1 would revitalize the four
>safeguards just mentioned and which for more than a century  were
>thought to govern treatymaking.  Surely no one would contend that
>Presidents were hamstrung, from the administrations of Washington
>to that of Harding; or that the  Nation was  not fully  sovereign
>during  that  period;   or  that   the  Constitution   frustrated
>international  cooperation  from  1789 to  1920.   Yet all  those
>charges have been leveled against  my amendment.   Those  charges
>will no doubt be repeated in these hearings--and in the debate.
>          The fact remains, however, that my amendment would
>merely  reimpose  the  safeguards  on  treatymaking  which   were
>actually   part   of   the   Constitution   for   more   than   a
>century--safeguards  which  were  emasculated  in  fairly  recent
>          The prime legal issue raised by the amendment is simply
>this:  Can a treaty or other international agreement override  to
>Constitution?    Of  course, the  founder of  our Republic  never
>dreamed that that could  happen.   If the  treatymaking power  is
>unlimited, then as Jefferson observed, "we have no Constitution."
> Nevertheless, no specific provision in the Constitution makes it
>supreme over conflicting treaties.  Moreover, the  record of  the
>Constitutional Convention of 1787 reveal  no discussion  whatever
>on the question, "Can a treaty of  other international  agreement
>override the Constitution?"
>       The Constitution says that three kinds of law are supreme.
> Article VI, paragraph 2,  describes as  the supreme  law of  the
>     1. The Constitution of the United States;
>     2. Laws of the United States made in pursuance of the
>Constitution; and
>     3. Treaties made, or which shall be made under the authority
>of the United States.
>     I emphasize in "2" that laws of the Congress must be in
>pursuance of the  Constitution and  that treaties  under "3"  are
>made under the authority of the United States.
>     Then article VI goes on to provide that this supreme law of
>the land--all three kinds--shall bind the judges in every  State:
>any  Thing  in  the  Constitution  or Laws  of any  State to  the
>Contrary notwithstanding.
>     Article VI, therefore, does not deal with the problem of
>relative supremacy  as between  the Constitution  and treaties.  
>Acts of Congress  were subordinated  to the  Constitution by  the
>requirement  that  they  be made  "in pursuance  thereof."   That
>phrase  could not  be used  in connection  with treaties  without
>invalidating  treaties  made  prior  to  the   adoption  of   the
>Constitution.  No provision of  the Constitution  was more  fully
>discussed in the Convention nor the subject of  more drafts  that
>what finally emerged as paragraph 2 of article  VI.   All of  the
>discussion,  however,  concerned  what  kinds  of  law should  be
>binding on the  States and  how respect  for such  law should  be
>     I have already mentioned the implied limitations on the
>treaty  power  which  were  developed  in  the  last century  and
>respected until 1920.  Then came the famous case  of Missouri  v.
>Holland.    That  case  opened  the loophole  which Senate  Joint
>Resolution  1 is  designed to  plug.   To conserve  time of  this
>Committee, I shall not relate the facts or the background of that
>litigation. I am sure that Judge Orie Phillips, or others of  the
>committee  of  the  American  Bar,  will  discuss  that  case  in
>considerable detail.
>     In Missouri v. Holland, Mr. Justice Holmes referred to
>article VI providing that laws of the United States  in order  to
>be the supreme law of the land must be made "in pursuance" of the
>Constitution, while  treaties become  such supreme  law if  "made
>under the authority of the United  States."   Justice Holmes  was
>the  first  judge  to  assign  any  legal  significance  to  this
>language.  This difference led Holmes to the conclusion that  all
>"acts of Congress are the supreme law of the land only when  made
>in  pursuance  of the  Constitution,"   it was  open to  question
>whether the  authority of  the United  States means   "more  than
>formal acts prescribed  to make  the Convention,"  which are  the
>negotiations of  treaties by  the President  and ratification  by
>two-thirds of the Senate present and voting.
>     And Missouri v. Holland, in turn, led the late Chief Justice
>Hughes to say to  the American  Society of  International Law  in
>1929 that he was unwilling to give an opinion that there was  any
>implied limitation on the treatymaking  power--that that  Supreme
>Court had intimated that there was none.
>     Next came the decision of the Supreme Court in United States
>v. Courtiss-Wright Corp. (299 U.S. 304),  decided in  1936.   Mr.
>Justice Sutherland declared that the power to make treaties
>and  other  international  agreements  is  not  derived from  the
>Constitution at all, but is an inherent power springing from  the
>fact of sovereignty.  It is hard to see how a power not  bestowed
>by   the   Constitution   can   be   circumscribed   by   implied
>constitutional limitations.     The dicta  in the  Curtiss-Wright
>case cannot be dismissed as unimportant.   Sutherland's  sweeping
>observations have been cited so frequently and  favorably by  the
>courts and by Government lawyers so  to have  attained the  force
>and dignity of a constitutional landmark.
>     In United States v. Pink (315 U.S. 203 (1942)), the Supreme
>Court said that  an executive  agreement became,  like a  treaty,
>"the supreme law of the land."  The Court held that the executive
>agreement  divested  creditors  of  property to  which they  were
>entitled  under  New York  law.   Many lawyers  believe that  the
>executive  agreement  involved  with  the   Pink  case   deprived
>creditors of their property without due  process of  law.   Prof.
>Philip C. Jessup made the following comment on the Pink case, and
>I quote from him in his book:
>>From the point of view of  our constitutional  law, the  decision
>may  well  mark one  of the  most far-reaching  inroads upon  the
>protection which it was supposed the Fifth amendment accorded to
>private  property (36 American Journal of  International Law  282
>                  ~~~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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