MSAFOA Director’s files, FRC 56 A 632, box 9, “Treaties Bricker Resolution”

The Counsel to the Director of Mutual Security (Eichholz) to the Director of Mutual Security (Stassen)

  • Subject:
  • Bricker Amendment

At a meeting this morning in the State Department, chaired by Mr. Phleger, the following points developed:

1. The Vice President had secured Senator Langer’s consent to a two week postponement of appearances by the Executive Branch. Apparently the Senator considers that this two week period ends March 14. At any rate he is reported to have said at a Committee [Page 1790] meeting the other day that all testimony must be in by March 17, that the Committee staff must have the Sub-Committee’s report ready by March 24, and that the full Judiciary Committee would consider the matter March 27.

2. Mr. Phleger is becoming increasingly concerned at the increasing evidence of the tremendous head of steam behind this matter and the evident efforts by Senators Bricker and Langer and certain members of the Bar Association to jam it through without adequate hearing. Senator Langer, incidentally, is the only member of the Senate to have voted against the U.N. Charter, so his prejudices are understandable. In addition, a number of Republican Members of Congress have expressed themselves to the effect that the anti-U.N. issue together with the Treaty issue is a powerful vote getter in their districts.

3. A number of Senators (Senator Smith of New Jersey was particularly mentioned in this connection) apparently privately expressed discomfiture at having been associated with the Bricker Resolution and would be glad to find some way to dissociate themselves from the whole enterprise. Possibly the play to substitute the Watkins Resolution presents this opportunity.

4. The Vice President assured General Persons that, if necessary, he would get a further postponement from Senator Langer. This will be attempted and, if unsuccessful, presumably the President will personally intervene.

5. Secretary Dulles’ calendar has been so full and will continue to be so full for the immediate future that it will be impossible for him to devote adequate attention to this matter for some weeks yet. Nevertheless it was agreed unanimously and emphatically by all present that it was absolutely essential for him to lead off Executive Branch testimony. Quite aside from this being primarily a State Department matter, any witness other than Secretary Dulles would be put in the position by the Committee of contradicting the Secretary’s supposed attitude in this matter as set forth in his Louisville speech,1 the pertinent paragraph of which reads as follows: (this appears on the first page of the Report of the Bar Association Committee on Peace and Law2):

“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, [Page 1791] 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 cut across the rights given the people by the constitutional Bill of Rights.”

It was the feeling that, until the Secretary has the opportunity to explain this away, Executive Branch testimony will not accomplish much.

6. There was some discussion of attempting to get articles on the subject written in legal periodicals and other more public media. In this connection, I mentioned the request made of you by the Washington Post and what your preliminary attitude had been. All agreed with your decision not to publish anything on this subject before Secretary Dulles has spoken for the Administration, and all further agreed that it would probably be desirable for you to write something to appear in print very shortly thereafter.

7. The plan is for State and Justice to argue the principles involved, and for Defense, Treasury, DMS et cetera to describe how their operations would be affected. However, it was recognized that you are in a somewhat special position in this matter because of your previous activity in the Bar Association and it may be desirable for you to go somewhat farther afield than purely MSP operations. In any event, Mr. Shanley will shortly wish to come to see you for advice on strategy and tactics.

8. There will be another meeting Friday, the 13th,3 at which time each agency is expected to have an outline of the points it will wish to make in testimony. I had already held a meeting this week of the MSP lawyers from the operating agencies at which I requested memoranda from them on Monday, the 9th. When I receive them I will start drafting an outline of the MSP part of your testimony. Are there any other aspects of the matter you would wish me to cover?4

  1. Dulles’ address at the regional meeting of the American Bar Association in Louisville, Kentucky, Apr. 11, 1952, a copy of which is in file 711.03/4–1152.
  2. This report has not been further identified.
  3. No record of this meeting has been found in Department of State or MSAFOA files.
  4. No record has been found of a reply by Stassen.