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The Need to Restrain the Treaty–Making Power of the United States within Constitutional Limits

Published online by Cambridge University Press:  30 March 2017

George A. Finch
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Extract

“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 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 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.”

Type
Research Article
Information
American Journal of International Law , Volume 48 , Issue 1 , January 1954 , pp. 57 - 82
Copyright
Copyright © American Society of International Law 1954

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References

1 Address before Regional Meeting of the American Bar Association, Louisville, Ky., April 12, 1952, reprinted in Hearings before Subcommittee of the Senate Judiciary Committee on S. J. Res.1, pp. 862–864.

2 16 Fed. Reg. 3503; also appended to the Supreme Court's opinion, 343 U. S. 579 at 589.

3 Youngstown Sheet & Tube Co. et al. v. Sawyer, 343 U. S. 579.

4 Ex parte Milligan (1866), 4 Wallace 2, 120–121.

5 Department of State Bulletin, Vol. 27, No. 699 (Nov. 17, 1952), pp. 789–792.

6 Hearings on S. J. Res.1, ibid., pp. 862–900.

7 Senate Report No. 412, 83d Cong., 1st seas. The report also contains the minority views. The Chairman did not join in either the majority or minority report, but filed individual views. Another Senator who was absent from the country would have signed the majority report had he been here.

8 Hearings on S.J. Res.130, May 21 to June 9, 1952, and on S.J. Res.1 and S.J. Res.43, Feb. 19 to April 11, 1953.

9 April 26 and Sept. 18, 1952, and Aug. 27, 1953. The American Bar Association has a membership of over 50,000. Its controlling body is the House of Delegates representative of the profession throughout the United States. Its action reaffirming the principles of the Bricker Amendment on Aug. 27, 1953, was most significant. On the preceding afternoon the Secretary of State in an address before the Assembly of the Association reiterated his strong opposition to the amendment (Dept. of State Bulletin, Vol. 29, No. 741, Sept. 7, 1953, pp. 307–309). On the morning of the 27th, members of the House in sympathy with his views moved that the Association amend its stand so as to oppose the amendment. After a vigorous debate lasting over two hours, the motion was rejected by a vote of 117 to 33. (American Bar Association Journal, Oct. 1953, p. 876.) At the Diamond Jubilee Banquet of the Association held the evening of the same day, the highest honor within the gift of the Association, its annual medal, was awarded to Frank E. Holman, a former President, for his “outstanding contribution to uphold and defend the Constitution of the United States” by his advocacy and support of a Constitutional Amendment “to prevent treaties and other international agreements from attaining ascendancy over our domestic law.” (Ibid., Nov. 1953, p. 976.)

10 Foster v. Neilson (1829), 2 Peters 253; U. S. v. Percheman (1833), 7 Peters 51.

11 New Orleans v. U. S., 10 Peters 662 at 736.

12 Missouri v. Holland (1920), 252 U. S. 416.

13 See Presidential Address of Dr. James Brown Scott before the American Society of International Law, April 26, 1934, entitled “Treaty-making under the Authority of the United States,” Proceedings of the Society, 1934, pp. 2–34. Dr. Scott was a delegate to the Havana Conference of 1928.

14 International Conferences of American States, 1889–1928 (Oxford University Press, New York), p. 371.

15 Proceedings, American Society of International Law, 1929, pp. 194–196.

16 U. S. v. Active (1814), Fed. Cas. No. 14, p. 420.

17 Goodrich and Hambfo, Charter of the United Nations (1949), pp. 111, 113, 120.

18 Mr. John P. Humphrey, in Annals of the American Academy of Political and Social Science, January, 1948.

19 Our Foreign Policy, Department of State Publication 3972, September, 1950.

20 See the article by Charles Malik, of the Lebanon, entitled “From a Friend of the West” in Life magazine, March 31, 1952.

21 The latest revision of the covenants was published in Department of State Bulletin, Vol. 27, No. 680 (July 7, 1952), pp. 23–31. Provisions of the covenant in conflict with the Bill of Rights of the United States Constitution were dealt with in the Report of the Committee on Peace and Law of the American Bar Association, Sept. 1, 1950, pp. 30–45, and Appendix, pp. 80–83. See also reports of that committee for Sept. 1, 1951, Feb. 1, 1952, and Feb. 1, 1953.

22 See testimony of Wm. L. McGrath, on behalf of the United States Chamber of Commerce, in Hearings on S.J. Res.1, 1953, pp. 530–571.

23 Treaty Law and the Constitution, American Enterprise Association (New York), pp. 36–37.

24 United Nations Bulletin, Sept. 1, 1952, pp. 248–253.

24a United Nations Bulletin, Aug. 15, 1952, p. 200.

24b Department of State Bulletin, Vol. 27, No. 680 (July 7, 1952), pp. 26–27.

25 U. S. v. Belmont (1937), 301 V. S. 324.

26 U. S. v. Pink (1942), 315 U. S. 203.

27 Philip C. Jessup, in this Journal, Vol. 36 (1942), p. 282. See also criticism of Edwin M. Borchard, ibid., p. 275.

28 Mackenzie v. Hare (1915), 239 U. S. 299.

29 (1889), 130 U. S. 581.

30 The Constitution and World Organization (Princeton University Press, 1944), p. 30.

31 Discussed infra, p. 72.

32 Hearings on S.J. Res.1, 1953, p. 1025.

33 Letters and Addresses of Thomas Jefferson (ed. Parker & Viles, New York, 1905), p. 154.

34 An analysis of modern constitutional provisions on this subject was made by the Committee on Peace and Law Through United Nations and published in its report for Sept. 1, 1950. It is reproduced in the Senate Committee Hearings on 8. J. Res.1, 1953, pp. 1113–1121.

34a Ware v. Hylton (1796), 3 Dallas 199.

34b W. B. Cowles, Treaties and Constitutional Law, Property Interferences and Due Process of Law (1941), pp. 83–84.

35 Taylor v. Morton, 2 Curtis 454, affirmed by the Supreme Court, 2 Black 481.

36 (1884), 112 U. S. 580.

37 (1889), 130 U. S. 581.

38 Analysis of modern constitutional provisions, cited supra.

39 The Law of Treaties, British Practice and Opinion (1939), by Arnold D. McNair, President of the International Court of Justice at The Hague.

40 Jones v. U. S. (1890), 137 U. S. 202.

41 Manual of Parliamentary Practice, cited supra p. 61.

42 Foster v. Neilson (1829), 2 Peters 253; U. S. v. Percheman (1833), 7 Peters 51.

43 Sei Fujii v. State of California (1952), 242 Pae. (2d) 617; this Journal, Vol. 46 (1952), p. 559.

44 Proceedings, American Society of International Law, 1951, p. 136.

45 Chinese Exclusion Case (1889), 130 U. S. 581.

46 Professor James W. Garner, then head of the Department of Political Science, University of Illinois, in this Journal, Vol. 29 (1935), pp. 482–488.

47 License Cases, 5 Howard 504, 508. The operation of the interstate commerce clause “must be permitted to extend to the smallest units and to activities that once were thought so remote from interstate commerce as to have no appreciable effect on it.” Former Associate Justice Owen J. Boberts, The Court and the Constitution, pp. 57–58.

48 June 12, 1934, 48 Stat. 943.

49 66 Stat. 163, Sec. 311; Supplement to this Journal, Vol. 47 (1953), p. 34.

50 See, for example, the Consular Convention with France of 1853, and the following commercial treaties with: Germany, 1923; China, 1946; Italy, 1948; and Uruguay, 1949.

51 Dept. of State Bulletin, Vol. 26, No. 675 (June 2, 1952), pp. 881–883.

52 Senate Executive Report No. 5, 83rd Cong., 1st Sess.

53 State Department memorandum, in Hearings on S. J. Res.1, 1953, p. 833.

54 60 Stat. 755.

55 The Minority Report on S.J. Res.1 (S. Rept. 412, 83d Cong., 1st Sess., p. 38) refers to this writer's testimony critical of the Acheson-Lillienthal Plan (Dept. of State Pub. 2498), miscalled the Baruch Plan. Under it, absolute ownership or control of all fissionable materials and of their uses, both military and civilian, as well as the sources of raw materials, would have been surrendered to a supra-national body, completely free of authority from the United States Government, except at most a small minority representation. The Baruch Plan has been outmoded by later development, both national and international, and has been combined with a larger study of disarmament. (Resolution of the U.N. General Assembly, April 8, 1953, Dept. of State Bulletin, Vol. 28, No. 721 (April 20, 1953), p. 584.) On Dec. 8, 1953, President Eisenhower, in an address before the General Assembly of the United Nations, proposed a plan to “Encourage worldwide investigation into the most effective peacetime uses of fissionable material” and to establish a joint pool of fissionable materials from contributions of the governments principally involved, to be “allocated to serve the peaceful pursuits of mankind.” As stated by the President, such a plan would depend in the United States upon the approval of Congress. (Dept. of State Pub. 5314.)

56 State Dept. memo., in Hearings on S. J. Res.1, 1953, p. 834.

57 56 Stat. 1045.

58 52 Stat. 31.

58a Wickard v. Filburn (1942), 317 N. S. 111.

59 18 U. S. Code, Sees. 246–247.

60 State Dept. memo., loc. cit., p. 840.

61 State Dept. memo., in Hearings on S. J. Res.1, 1953, p. 840.

62 Hearings on S.J. Res.130, 1952, p. 315; and on S.J. Res.1, 1953, pp. 1124, 1138.

63 Moore on Extradition, p. 21, and Moore, Digest of International Law, Vol. IV, pp. 248–253.

64 Grin v. Shine, 187 U. S. 181. See also Valentine v. U. S., 299 U. S. 5.

65 American Political Science Quarterly, Vol. 20, pp. 389–390.

66 Hijo v. U. S. (1904), 194 U. S. 315.

67 Department of State Bulletin, Vol. 12, No. 297, p. 324.

68 Cong. Rec, March 1, 1945, Vol. 91, Pt. 2, p. 1620.

69 Department of State Bulletin, Feb. 10, 1946, pp. 189–190.

70 Proceedings, American Society of International Law, April 30, 1937, p. 45.

71 Hearings on S.J. Res.1, 1953, p. 828.

72 Hearings on S.J. Res.1, 1953, p. 825.

73 Ibid., pp. 828–829.

74 Alexander Hamilton in The Federalist, No. 84.

75 Mr. Justice Jackson in the Steel Seizure Cases, supra, p. 59.

76 Hon. John W. Davis, in his closing argument for the private companies in the Steel Seizure Cases.