Time: Wed Jul 30 06:43:39 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id GAA15345; Wed, 30 Jul 1997 06:30:29 -0700 (MST) by usr01.primenet.com (8.8.5/8.8.5) with SMTP id GAA13397; Wed, 30 Jul 1997 06:27:21 -0700 (MST) Date: Wed, 30 Jul 1997 06:26:38 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Abuse of Treaty-making Powers (3/3) (fwd) <snip> > > After Holland, the Curtiss-Wright, and the Pink cases were >decided, experts in the field of international and constitutional >law began to reappraise the treatymaking power. Among those who >made such reappraisal was Mr. John Foster Dulles. Addressing a >regional meeting of the American Bar Association in Louisville, >Ky., on April 11, 1952, Mr. Dulles said: > >The treatymaking 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 in 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 >away 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. > > This is the classic statement on the danger of treaty law. >No other statement describes so well the dangers which confront >us today. > Now I would like to split the amendment into its component >parts, and briefly discuss each part in the order of its >importance, in my judgment. > (1) An executive agreement which conflicts with this >Constitution shall not be of any force or effect (sec. 1). > This is the most important part of this amendment. If >executive agreements, not approved by either House of Congress, >can override the Constitution, the President has the power of a >dictator. > (2) A treaty which conflicts with the Constitution shall not >be of any force or effect (sec. 1). > The next most important objective is to prevent treaties >from overriding the Constitution. Of course, two-thirds rule >affords some protection against the making of treaties which >conflict with the Constitution, because every Senator has taken >an oath to abide by and support the Constitution. No such >protection surrounds the making of executive agreements. > Section 1 would thus insure that the Constitution would set >the limits on the substance of treaties and not merely prescribe >the method of their making. > Section 1 will put treaties and other international >agreements where they belong--subject to the Constitution and >invalid if they either conflict with it of are not made, as >Federal laws must be, in pursuance of it. Any contrary inference >from the language of the Constitution or from the cases would be >impossible. > There can be and there should be but one paramount law--the >Constitution itself. Both laws of the United States and all >actions of the Federal Government should be subject to it. The >theory that treaties stand on a level with the Constitution >itself or can alter or amend that Constitution, should not be >allowed to develop or to exist. > (3) An executive agreement shall become effective as >internal law in the United States only through legislation >(sec.2). > There must be no possibility of one-man law in the United >States even through such law does not contravene any express >constitutional prohibition. The Pink case and related cases have >given the President legislative power, the dimensions of which >are yet unknown. We must repeal the judge-made exceptions to >article I, section 1 of the Constitution vesting all legislative >power in the Congress. > (4) Legislation to make executive agreement effective as >internal law must be valid in the absence of the agreement (sec. >2). > Executive agreements made by the president and approved by >the Congress should not be effective to regulate subjects >reserved to the States by the 10th Amendment. The President and >the Congress obviously have such power today since the Pink case >held that the President alone has such power. > (5) Treaties and executive agreements should not be valid >unless made in pursuance of the Constitution (sec. 1). > Testifying in hearings on Senate Joint Resolution 1 two >years ago, Secretary of State Dulles indicated that a treaty to >effectuate internal social reforms, even though not in direct >conflict with the Constitution, would not be one made in >pursuance thereof. The Attorney General expressed the same >opinion when he told the Senate Judiciary Committee: > > Our Federal system did not contemplate having treaties deal >with matters exclusively domestic in nature. > > Addressing the annual meeting of the American Bar >Association in September 1953, Mr. Dulles suggested that the >treaty power would not be exercised in pursuance of the >Constitution if it were used in the following manner: > >to effectuate domestic reforms, particularly in relation to >economic and social matters, and to impose upon our country >socialistic conceptions which many felt were alien to our >traditional American ideals. > > The requirement in section 1 that treaties and other >international agreements be made "in pursuance" of the >Constitution will reinforce the implied limitation on the scope >of international agreements which both the Secretary of State and >the Attorney General believe to exist. > (6) A treaty shall become effective as internal law in the >United States only through legislation (sec. 2). > Section 2 would prevent any treaty from being internal law >of the United States simply by reason of its own existence. >There would be no more self-executing treaties as domestic law. >Legislation would be necessary to effectuate a treaty as internal >law. > Such requirement would place the United States in the same >position as most other countries in the world. Only the United >States and 2 or 3 other countries can a treaty become >domestic law without implementing legislation. I ask, Mr. >Chairman, that there be printed in the record of the hearings the >address by Sir David Maxwell Fyfe, Secretary of State for the >Home Department of Great Britain, at the American Bar Association >meeting last August in Chicago. This article proves that the >principles of section 2 of my amendment are in force throughout >the British Commonwealth. > Senator KEFAUVER. The address of David Maxwell Fyfe--I >think it is probably better to print these in the appendix so as >to interrupt the continuity of your remarks. > Senator Bricker. That is entirely satisfactory. > Senator KEFAUVER. Without objections, that will be >done. > Senator Bricker (continuing). > (7) Legislation to make a treaty effective as internal law >must be valid in the absence of treaty (sec. 2). > This part of the amendment would repeal Missouri v. Holland. > (8) Treaties should not be approved by a mere handful of >Senators present and voting (sec. 3). > Section 3 of the amendment requires a yea-and-nay vote on >treaties, thus insuring the presence of at least 49 Senators. > The nature of opposition to any limitation on the treaty >power has been revealed in the current debate on United Nations >Charter Revision. To be sure, many advocates of world government >seek that end only through formal amendment of the Constitution >of the United States. I have for many years commended such >people for the respect they have shown for the spirit of our >Constitution. In addition, I have always recognized that many >sincere and high-minded people who oppose my amendment are not >attracted by the world government idea. The fact remains, >however, that the primary source of opposition comes from those >who seek to set aside the Declaration of Independence and nullify >many of our Constitutional protections. > This has been made clear in the hearings before the Senate >Foreign Relations Subcommittee on United Nations Charter >Revision. > Our Declaration of Independence would necessarily become a >meaningless document and a historical relic if the United States >were ever reduced to a province in any form of Federal world >government. This recommendation, however, has been presented time >and time again to the Senate Foreign Relations Subcommittee in >the form of amendments to the Charter that would destroy the >independence of the United States. Any Charter amendments that >may be adopted at any U.N. Charter review conferences would no >doubt be regarded as treaties, and hence would require the advice >and consent of the Senate. If any such amendment that may be >adopted undermine the concept of national sovereignty, they can, >under our present Constitution, and the decisions, be made >effective by the action of two-thirds of the Senators present and >voting at any time over the next hundred years. We must, >therefore, have a constitutional amendment that will assure the >American people an opportunity to pass judgment on any revision >of the United Nations Charter that compromises or undermines the >independence of the Republic. > A number of world government enthusiasts advance the >reactionary theory that the United Nations Charter should be >amended, if necessary by interpretation rather that by formal >amendment. This theory is advanced in staff study No. 2 of the >Senate Foreign Relations Subcommittee on United Nations Charter >Revision. In fact, the authors of that remarkable document >maintain that the Charter, without the advice and consent of the >Senate, has already been validly and substantially amended. This >is what they say: > >We are by no means examining the Charter that was drafted in San >Francisco in 1945. We are examining the Charter of 1954 as it >has been amplified by custom and usage, resolutions of the >various U.N. organs and treaties * * * > > That the U.N. Charter can be amended without Senate approval >is the most illiberal and reactionary proposition ever advanced >in a Senate document. It is based on the wholly false premise >that the United Nations Charter is a world constitution. The >United Nations Charter is, Mr. Chairman and members of the >committee, a treaty. The Senate advised and consented to its >ratification in 1945. I shall never stop insisting that the >United Nations Charter and all other treaties to which the United >States is, or may become a party, are contracts rather than >constitutional documents. That was the sense in which the >Founding Fathers used the word "treaty" in the Constitution. > For example, Hamilton explained the treaty power in the >Federalist, No. 75, as follows: > >The power to make treaties * * * relates neitherto the execution >of the subsisting laws, nor to the enaction of new ones * * * Its > objects are contracts with foreign nations, which have for force >of law, but derive it from the obligations of good faith. They >are not rules prescribed by the sovereign to the subject, but >agreements between sovereign and sovereign. > > > To repeat, the advocates of world government seek to repeal >the American Declaration of >Independence. Some would do it by amending the United States >Constitution, other seek the approval if the Senate on U.N. >Charter amendments, while still others hope to reach world >government by informal amendment to the United Nations Charter. > Let me say here, that I have no objection to any person >becoming a protagonist of any change that he wants to in the >Constitution of the United States if it goes before the American >people, as this amendment will, by approval of two-thirds of the >Senate and the House, and through ratification of three-fourths >of the States of the Union. But I do not want it done by >informal amendment of the United Nations Charter. > The end result is the same--the United States would cease to >be a sovereign, independent nation. When independence is >destroyed, our liberties are destroyed at the same time. That is >one of the most important reasons why we need a constitutional >amendment safeguarding the power to make treaties and executive >agreements. > At the same time I first proposed a constitutional amendment >to safeguard the exercise of the treatymaking power, I said that >the sovereign and the Constitution of the United States were at >stake. In fact, they were imperiled. The danger is just as >great today as it was then. > That, Mr. Chairman and members of this committee, is the >reason why I have resubmitted this resolution. I know of the >great support of the American public for the amendment, and I >know also of the great support that there is for the amendment in >the Senate and House of Representatives, that it be submitted to >the States for ratification. I know of no provision of the >Constitution which more carefully safeguards the rights of the >American people than the amendment section. I want the amendment >section to be compiled with, not only with this amendment, but >with any other change that might take place in the fundamental >law of our land. > I want to thank the chairman and members of the committee >for their attention. There are others who will testify more in >detail on the various provisions of the amendment and the case >which are involved in it. > >----------------------------------------------------------- >13 United States Congress, Senate, Subcommittee of the >Committee on the Judiciary. "Treaties and Executive Agreements: >S.J.R. 1." Hearings, 84th Cong., 4th Sess., April 27, 28, 29, May >2, 5, 10, 11, and 12, 1955. > > > > > ~~~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 tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
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