Princeton University Library, Herman Phleger papers

Memorandum by the Secretary of State to the President

  • Subject:
  • Bricker Resolution

1. S.J. Res. 1, which had 63 sponsors, has now been entirely rewritten (see annexed “Confidential Committee Print”1). This confirms that the original S.J. Res. 1 was gravely defective and it suggests that the substitute resolution ought to be subjected to the same processes as disclosed the defects in the original.

Judge John J. Parker has written of the revised resolution: “In my opinion, it is just as objectionable as the original amendment and even more so.” That is particularly true of Section 3 of the revised resolution.

2. The following is a brief analysis of the substantive provisions of the new resolution:

Section 1 states that a treaty provision which “conflicts” with the Constitution shall not be of any force or effect. This is undoubtedly the law today. However, the courts assume that constitutional amendments intend to change something, and they would doubtless try to find a meaning for Section 1. What the courts’ interpretation would be is highly speculative.

Section 2 says that a treaty shall become internal law only through (a) an act of Congress and (b) an act “which would be valid in the absence of a treaty”.

The first proviso burdens the treaty-making process by requiring a second vote, which would include the House, in addition to the [Page 1817] original two-third’s Senate vote. The second proviso means that treaties cannot deal with matters which, from a domestic standpoint, are left to State legislatures rather than the Federal legislature. This, in large measure, cuts the treaty power back to what it was under the Articles of Confederation. It makes impossible for the future, and, perhaps, invalid retroactively, traditional treaties such as treaties of friendship, commerce and navigation; extradition; reciprocal inheritance; narcotic control; and such pending treaties as the NATO Status of Forces Treaty, and the German Bond Validation Agreement. It casts grave doubt on effective international atomic control by treaty, such as the Baruch Plan.

Section 3 transfers from the President to the Congress the power to regulate all Executive and other agreements with any foreign power or international organization.

This would effect a fundamental constitutional change. Under the Constitution as it now stands, the President has the exclusive power over the current conduct of international affairs. The proposed amendment would transfer the power in this respect to the Congress. If this amendment were adopted, peacetime agreements that are made every day by the President in the normal conduct of foreign affairs would be “subject to regulation” by the Congress, as well as wartime agreements for the conduct of war, and such a truce agreement as is being negotiated in Korea. Congress could, if it wished, forbid your making any agreement to meet with a foreign representative, as at Bermuda, or coming to any understandings there.

I can think of few constitutional changes which would render our nation more incapable of taking care of itself in the world of today, for the Congress is not a body capable of regulating the current conduct of foreign affairs.

John Foster Dulles
  1. Not found as an annex to the source text, but the text of the new version of S.J. Res. 1, as reported to the Senate by the Committee on the Judiciary on June 15, is printed in the editorial note, infra.