Foreign Relations of the United States, 1952–1954, General: Economic and Political Matters, Volume I, Part 2
Memorandum by the Secretary of State to the President 1
- Bricker Resolution
I understand that at the last Cabinet meeting, where I was represented by General Smith, discussion was had regarding a proposal to set up a so-called “Bricker Commission” to consider the Constitutional amendment on the treaty-making power.2 If this is acceptable to Bricker, I assume that my hearing, set for April 6, will be postponed. Otherwise, I shall have to testify on that date. I enclose herewith a draft of my proposed statement. This is perhaps longer than you will want to read in toto, but I hope you will at least read the section on page 11,3 where I make a declaration with respect to the prospective handling of Executive agreements. This or some alternative should have your approval. I might add that the procedure therein suggested is substantially what has been informally worked out between this Department and the staff of the Foreign Relations Committee.
The enclosed statement covers our agreed positions in relation to the Covenant on Human Rights and the Covenant on Political Rights for Women. It does not cover our position on the Genocide Convention.4 However, at the hearing, I will doubtless be pressed on this point. I am disposed to take the position that more than four years have now elapsed since the treaties were signed. In the meanwhile, the Soviet bloc countries have either refused to ratify or have ratified with major reservations. Furthermore, they have flagrantly violated the treaties, and there seems to be no effective redress. Therefore, it would not seem that any great good could be accomplished by our ratification at this time, but rather that the whole matter should be kept under advisement with a view to finding a better remedy for the proclaimed evil, when world conditions have become more stable and when higher standards of conduct are more generally accepted.
Paper Prepared in the Department of State 5
The Pending Resolutions
S.J. Res. 1 and S.J. Res. 43 involve proposals of the utmost importance. They would basically change the Constitution of the United States relative to the making of treaties and executive agreements.
Each of the resolutions would deprive the nation of treaty-making power in large areas. They would deny to all treaties the force of law, making their enforcement depend on subsequent action of the Congress and, in the case of S.J. Res. 43, also of the 48 States. In relation to the current, day-by-day, conduct of foreign affairs, the Resolution would end the President’s position as one of the coordinate branches of our Government and subject him to Congressional control.
Obviously, these far-reaching proposals should not be enacted without careful study.
The Historical Background
Our present constitutional system was framed in the light of the national dangers which had resulted from the feeble power of the Confederation to deal with foreign affairs.
Perhaps the most urgent reason for calling of the Convention which framed our Constitution was the fact that treaties made under the Articles of Confederation were not enforceable because they operated upon the States and not upon individuals. There was no federal judiciary with authority to enforce treaties as part of the internal law.
Out of this grew the treaty provisions of our Constitution. A reading of the debates of the Convention and of the Federalist papers shows the extreme care that was taken in their formulation. They reveal too that some of the proposals contained in the resolutions now being considered were advanced and rejected. For instance, Gouverneur Morris made a motion that no treaty should [Page 1798] be binding “which is not ratified as a law.” This was voted down 8 to 1 (2 Farrand 392).
The treaty-making power, as it was written into our Constitution, is, to be sure, a vast power. Treaties made by the President and concurred in by a two-thirds vote of the Senate become “law of the land”. No limitation upon the treaty-making powers are explicitly defined in the Constitution or decisions of the Supreme Court. But the treaty-making power is not an unlimited power. All of the Supreme Court cases which deal with the subject are uniform to that effect.
Furthermore, while the Constitution provides that treaties made under the authority of the United States shall be the supreme law of the land, they only rank on an equality with Congressional enactments.
The effect of any treaty as internal law can be overcome by a simple act of Congress.
That is a Constitutional fact which must be, and is, accepted by all other nations which make treaties with us.
The present system has worked well for 160 years. The Supreme Court has never had occasion to hold a treaty to be unconstitutional. On the other hand, no treaty has ever yet been made which can be cited as an example of the abuse of the treaty-making power. These two circumstances are persuasive evidence of the care with which treaty power has been exercised during the entire existence of our Republic.
Basis for Proponents’ Fears
During recent years there has developed a tendency to advocate the treaty-making process as a desirable instrument to effectuate reforms, particularly in relation to social matters, and to impose upon our Republic conceptions regarding human rights which many feel are alien to our traditional concepts. This tendency caused widespread concern, a concern which is reflected in the proposed resolutions before you, resolutions which first took form in a prior Congress.
I believe that that concern was there a legitimate one. Those who shared it were alert citizens. I believe they have performed a patriotic service in bringing their fears to the attention of the American public.
Partly as a result, there has been a reversal of the trend toward trying to use the treaty-making power to effect internal social changes. This Administration is committed to the exercise of the treaty-making power only within traditional limits. By “traditional” I do not mean that to imply that the boundary between domestic and international concerns is rigid and fixed for all time. I do [Page 1799] mean that treaties are contracts with foreign governments designed to promote the interests of our nation by securing action by others in a way deemed advantageous to us. I do not believe that treaties should, or constitutionally can, be used as a device to circumvent the procedures established in relation to what are essentially matters of domestic concern.
The Present Trend
To illustrate my point about the change of trend, I may point out:
1. The present Administration intends to encourage the promotion elsewhere of human rights and individual freedoms, but to favor methods of persuasion, education, and example rather than formal undertakings which commit one part of the world to impose its particular social and moral standards upon another part of the world community, which has different standards. That is the point of view I expressed in relation to the Japanese Peace Treaty. Therefore, while we shall not withhold our counsel from those who seek to draft a treaty or covenant on Human Rights, we do not ourselves look upon a treaty as the means which we would now select as the proper and most effective way to spread throughout the world the goals of human liberty to which this nation has been dedicated since its inception. We therefore do not intend to become a party to any such covenant or present it as a treaty for consideration by the Senate.
2. This Administration does not intend to sign the Convention on Political Rights of Women. This is not because we do not believe in the equal political status of men and women, or because we shall not seek to promote that equality. Rather it is because we do not believe that this goal can be achieved by treaty coercion or that it constitutes a proper field for exercise of the treaty-making power. We do not now see any clear or necessary relation between the interest and welfare of the United States and the eligibility of women to political office in other nations.
These same principles will guide our action in other fields which have been suggested by some as fields for multilateral treaties.
3. The Constitution provides that the President shall have power to make treaties by and with the advice and consent of the Senate. This Administration recognizes the significance of the word “advice”. It will be our effort to see that the Senate does not get its opportunity to “advise and consent” so late that it either has to adopt treaties it does not like, or imperil our international position by rejecting what has already been negotiated out with foreign governments.
Prevention of Abuses of Power
The American people, by putting into office an Administration which holds the point of view I indicate, have effectively demonstrated one of the many ways by which abuses of the treaty-making power can be avoided. In one way or another, abuses have been avoided throughout the life of our Republic. The question thus is [Page 1800] whether, in the face of 160 years of non-abuse of the treaty-making power, it is desirable to amend our Constitution as now proposed.
I have been sympathetic to the point of view reflected in S.J. Resolution 1, and I have so expressed myself. I have, however, now come to the conclusion that this whole matter requires further study, because analyses of the pending resolutions show that it may weaken our government in the field of foreign relations in ways which I know the proponents of the resolutions do not intend or desire. Close analysis shows that it is difficult, if not impossible, to amend the Constitution so as to exclude possible abuses, without incurring risks that are far greater than the risk that the present powers will be abused.
Present Importance of Treaty Power
In this connection, may I point out that more than ever before in history it is essential that the United States should be able to make binding and effective contracts with other nations. Today about 50 free countries, representing approximately two-thirds of the people and natural resources of the world, face a mortal threat. That threat comes from a single totalitarian dictatorship which rules one-third of the peoples and natural resources of the world.
This single despotic power has enormous advantages unless the free nations can work together. This cooperation cannot be achieved by imitating the imposed unity of our potential enemy. In the main, our working together must be achieved through such exercise of the treaty power and executive agreement power as will coordinate our military and economic strength, and so that friendly cooperation and understanding are promoted. The ability to use treaties to effect this result can become a matter of national survival.
Furthermore, we must keep open at least the possibility of making treaties with our potential enemies which will mitigate the dangers and ease our burdens through measures which would effectively control armaments.
If, unhappily, general war should come, the President as Commander-in-Chief would have to achieve unity of action with our allies through executive agreements. And when victory was won, we should have to make treaties of peace—as we still have to conclude a formal treaty of peace with Germany.
It is against this background that the pending Resolution must be judged.
Discussion of Resolution: Section 1
I could discourse about Resolution 1 at length. It may, however, be enough, if, at this time, I illustrate why in my opinion this pending [Page 1801] Resolution, despite the good intentions which prompt it, actually could be dangerous to our peace and security.
Section 1 of the Resolution provides that no treaty shall abridge any right enumerated in the Constitution. The Constitution specifies the power of Congress to declare war. Does Section 1 of the proposed Constitutional amendment mean that the United States can never make a treaty which would outlaw war? Can we never agree, with other nations, to abridge the present unqualified right of Congress in relation to war? Surely this is no time for the United States to make itself unable to enter into treaties which would effectively ban the terrible spectre of a war.
Further, Section 1 might prevent in the future, and perhaps invalidate for the present and future, peace treaty provisions, such as those of the Japanese Peace Treaty, which limit the individual reparations claims of United States citizens. Such treaty provisions might be held to abridge the “due process” clause. If individual American claims to reparations are not subject to peace treaty disposition, our nation will have lost the capacity to turn a past enemy into a future valued and vigorous friend. It would mean that wars would inevitably end in prolonged chaos.
Section 2 of the proposed Resolution says that no international organization may supervise or control the rights of citizens of the United States within the United States if those rights are enumerated in the Constitution or are “essentially within the domestic jurisdiction of the United States.” This could mean that the United States could not make treaty arrangements for the international control of atomic energy and atomic and other weapons along the lines of the so-called Baruch Plan. The United States has always insisted in negotiations and debate with the Soviet Union that no limitation or control of armaments would be acceptable unless enforced by strict international supervision. This the Soviet Union has so far refused to permit. Surely this is no time for the United States to make itself unable to participate in the effective international control of armaments.
And how about international supervision of aviation, radio, narcotics, land quarantine requirements? Mere assertion that these are international and not domestic matters will not settle the question. We can but speculate as to what decisions the Supreme Court may reach as to the meaning and application of such a broad amendment to our Constitution.
Section 3 of the proposed Resolution says that no treaty shall become “law of the land” except through legislation by the Congress. [Page 1802] This would make it so much more difficult to consummate effective treaties that our nation’s ability to deal with other nations would be gravely impaired. It would mean that all treaties which operate within the United States would, in the first instance, have to be consented to by the Senate by the traditional two-thirds majority and then also, at a later date, be put into force by laws requiring the concurrence not only of the Senate but also of the House.
In the past it has often been charged that our present Constitutional treaty-making process is too difficult, being subject to block by ⅓ plus 1 of the Senators present. This has been criticized as “government by minority.” It has also been suggested that the ⅔ Senate requirement be abandoned in favor of a majority of both the Houses. But never before has it been suggested that a ⅔ vote of the Senate is not enough—that there must also be a majority vote of the House of Representatives if a treaty is to be effective within our country.
In many countries, the Senate or Upper House has become relegated to an unimportant role. In this country, the Senate has proudly executed the unique role of participating with the President in the making of treaties. It would occasion surprise and misgivings in many quarters if the Senate should now feel so unsure of itself that it sought to subject its ⅔ approval to veto by a majority of the House.
Section 4 of the proposed Resolution deals with Executive Agreements. It provides that the President cannot make any agreement of any sort with any foreign government or official except as the Congress may prescribe. This section would make it impossible for the President to handle the current conduct of foreign affairs as the head of one of the coordinate branches of government. It would drastically alter our present Constitutional concept of balance of power by making the President in the field of foreign relations a servant of the Congress.
Executive Agreements of major importance are now customarily made pursuant to Congressional or treaty authorization, or depend on Congressional action for their implementation.
But every day the President, directly or through his agents, makes minor agreements of some kind or description with other governments or officials. There are masses of agreements made, and changed, almost daily with relation to the development of foreign bases and disposition of our troops abroad. There are many agreements with other governments to impose restrictions upon trade with areas unfriendly to us.[Page 1803]
A short time ago, on behalf of the President, I was able to reach agreement with the Governments of the United Kingdom and of France that they would impose restrictions on trade with Communist China. There is an agreement that the NATO countries will meet again in Paris on April 23. There are agreements regarding a host of matters. This proposed Resolution would subject this entire process to Congressional prescription.
I know full well that the proponents of this Resolution are not activated by a purpose to subordinate the President to the Congress in such matters. But that is what the amendment would do. It would so detract from the authority of the office of the President of the United States that his capacity to deal with international affairs would be gravely impaired.
One must recognize that there has been legitimate criticism of the exercise of the Executive power to make agreements in the foreign field. It is charged that the Executive has employed such agreements in lieu of treaties because of an unwillingness to submit them to the advice and consent of the Senate. Whatever legitimate fears there may have been on this score, I wish to dispel.
I am authorized by the President to advise this Committee, the Senate Foreign Relations Committee, and the House Foreign Affairs Committee as follows:
“It has long been recognized that difficulties exist in the determination as to which international agreements should be submitted to the Senate as treaties, which ones should be submitted to both Houses of the Congress, and which ones do not require any Congressional approval.
“Differences of opinion resulting from these difficulties have given rise in the past to disputes between the Executive Branch and the Congress concerning the handling of international agreements. It must be recognized that it would be extremely difficult if not impossible to fit all agreements into set categories. At times there may be disagreement as to the manner in which agreements are to be dealt with. While recognizing this, the Executive cannot surrender the freedom of action which is necessary for its operations in the foreign affairs field. In the interest of orderly procedure, however, I feel that the Congress is entitled to know the considerations that enter into the determinations as to which procedures are sought to be followed. To that end, when there is any serious question of this nature and the circumstances permit, the Executive Branch will consult with appropriate Congressional leaders and Committees in determining the most suitable way of handling international agreements as they arise.”
S.J. Res. 43, which follows the language proposed by a Committee of the American Bar Association, contains a further provision. This would require that no treaty shall be effective in any field in which [Page 1804] Congress in the absence of a treaty cannot legislate. This would create a No-Man’s Land in foreign affairs. It would require the concurrence of all 48 States to make effective such common treaties as treaties of Friendship, Commerce and Navigation, extradition, reciprocal inheritance taxation, migratory birds, collection of foreign debts, and status of foreign troops. In this field of foreign affairs our country would not speak with one voice but with 49. The primary objective of the framers of our Constitution in this respect would be defeated.
A Balancing of Risks
I feel sure that the proponents of the Resolutions do not intend to do other than to eliminate the risk of abuses. Their motives are, I know, of the highest. The trouble is that when it comes to putting their desire into legal form the result is greatly reduced capacity for national action in an area where it is of the utmost importance, particularly now, that our nation should have power.
Of course, there can never be power without risk of its abuse. But our present Constitutional processes have worked successfully for 160 years. Never during this period has any actual treaty produced the results which the proponents of the Resolution fear. Whenever there has seemed to be danger of that, the people of the United States, the Senate of the United States, and the Executive Branch of the United States have all moved in concert to repel that danger. What has happened in recent months, including the exertions of the proponents of the Resolution, demonstrates that the Resolution is unnecessary. The trend they feared has been checked. Indeed, it has been reversed. In this connection, a special tribute is due to Senator Bricker. It can indeed be judged that the proponents of this Resolution have themselves demonstrated that its enactment is unnecessary.
The End of an Era of Distrust
Today our nation faces many perils—-more, probably, than ever before in its history. Not all of these perils are from abroad, some of them are from within. One of the great perils comes from the fact that the American people seem to be developing a distrust of one another.
Distrust is a negative quality. It creates a climate which paralyzes constructive achievement.
This Resolution was born out of an era of distrust which I am convinced is now passing. I believe that the American people can have confidence in themselves and in the leadership which they have chosen. I believe that the Senate can have faith in itself.
The Resolution cannot be adopted by ⅔ of both Houses of Congress and by the legislatures of ¾ of the States except as it wins [Page 1805] support through promoting distrust as to the capacity of the American people to see and resist threats to their liberty; distrust of the United States Senate as one of the guardians of their liberty; and distrust of the President as their Chief Executive. This is no time to evoke fears, even to secure what might under other circumstances be a desirable Constitutional amendment.
This is the time to show confidence in ourselves and to inspire confidence on the part of our friends.
For these reasons, I urge that the Resolutions should not now be favorably reported.
The Department of State has prepared a more detailed memorandum dealing with the questions raised by these resolutions. I submit this for the information of the Committee and ask that it be included, with its annexes, in the record of this hearing.
- Drafted by the Secretary of State.↩
- This is a reference to the Cabinet meeting of Mar. 27, at which time the Bricker Amendment was briefly discussed. The minutes of this meeting are in the Eisenhower Library, Eisenhower papers, Whitman file.↩
- This is a reference to Dulles’ analysis of “Section 4” of S.J. Res. 1, p. 1802.↩
- For documentation regarding the consideration by the United Nations of these two covenants and of the Genocide Convention, see volume iii .↩
- The author of the paper is not identified.↩