THE BRICKER AMENDMENT: A Cure Worse Than The Disease?

"One of the greatest constitutional crises the country has ever faced," said the American Bar Association, and argued that the Bricker Amendment should be passed to protect the Union from dire peril.

"The most momentous constitutional issue since President Roosevelt's attempt to pack the Supreme Court," said the Washington Post, and argued that the Bricker Amendment should be defeated to protect the Union from dire peril.

This week the U.S., quietly and in measured tones, is in the midst of a constitutional great debate. Ohio's junior Senator, Republican John William Bricker, touched it off by proposing a constitutional amendment. Its main aim: to restrict the making of U.S. domestic law by international treaty. Earnest Lawyer Bricker argues that his amendment would plug "a dangerous constitutional loophole." Members of President Eisenhower's Cabinet argue that it would "damage [the] balance of power" between Congress and the President and "completely hamstring" the conduct of foreign relations, and Wisconsin's Senator Alexander Wiley calls the amendment "the most dangerous thing that has ever been brought before Congress." But 44 other Republican Senators (and 19 Democratic Senators) agreed to cosponsor the Bricker Amendment. Several state bar associations have endorsed it, but the New York State Bar Association denounces it as "unnecessary, unwise, divisive and dangerous."

The Supreme Law. The debate turns on a clause (Article VI, Clause 2) in the U.S. Constitution that makes treaties--along with federal laws and the Constitution itself--"the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Laws must be made "in pursuance" of the Constitution, but treaties need only be made "under the Authority of the United States," i.e., by the President, "by and with the Advice and Consent of the Senate . . . provided two-thirds of the Senators present concur." Thus treaty provisions can, without legislation, become internal law, enforceable on individual citizens and overriding conflicting laws, both state and federal. If a treaty provision is not enforceable as it stands, Congress has the power under Article I to make "necessary and proper" laws to put it into effect.

As interpreted by the Supreme Court, Article VI means that treaty provisions, or "necessary and proper" laws based on the treaties, can regulate matters that the Constitution otherwise reserves to the states and the people. After federal courts had declared a 1913 migratory-bird protection law invalid on the ground that it violated the Tenth Amendment ("The powers not delegated ... are reserved . . ."), the U.S. and Canada agreed by treaty to protect birds that flew between the two countries. Then Congress passed a law similar to the 1913 law. In 1920, in the famous Missouri v. Holland decision, the Supreme Court upheld the statute, ruling in effect that the Federal Government can derive from treaties legislative powers not specifically granted by the Constitution.

A Deliberate Step. Advocates of the Bricker Resolution argue that such broad interpretations of the treaty power as Missouri v. Holland go beyond what the Constitution's authors intended--and can do untold damage in fields far more important than bird legislation. But history indicates that the authors of the Constitution knew what they were doing and had good reasons for doing it. The Articles of Confederation had foundered largely because the national government had no power to make the states observe treaties. The 1783 peace treaty with Great Britain provided that property rights of Britons and loyalists would be respected in the U.S., but several American states passed property laws grossly discriminating against loyalists. Said Virginia's James Madison at the Constitutional Convention in Philadelphia in 1787: "The necessity of some adequate mode of preventing the states in their individual characters from defeating the constitutional authority of the states in their united character . . . had been decided by a past experience."

So, while preserving the federal structure of the Union and carefully limiting the powers of Congress in domestic legislation, the men of 1787 deliberately made "the states in their united character," i.e., the Federal Government, entirely sovereign in dealing with foreign nations--the laws and reserved powers of the states notwithstanding. In doing that, the framers gave the Federal Government an immense power.

In the 166 years since 1787, virtually the only limit put upon the treaty power by the Supreme Court is that a treaty may not "authorize what the Constitution forbids." Even that limitation has been questioned. A circuit court of appeals declared: "It is doubtful if the courts have power to declare the plain terms of a treaty void and unenforceable."

In April 1952, before he knew he was going to be the next Secretary of State, Lawyer John Foster Dulles said in a speech: "The treatymaking power is an extraordinary power liable to abuse. Treaties make international law, and also they make domestic law ... They are, indeed, more supreme than ordinary laws. [They] can override the Constitution . . . cut across the rights given to the people by their constitutional Bill of Rights." This passage was taken as a Dulles endorsement of the American Bar Association's move to change the Constitution by limiting the treaty power.

A year later, testifying against the Bricker Amendment, Secretary Dulles said that though the treaty power was indeed "liable to abuse," it had not in fact been abused. The U.S. has made some unwise arrangements with foreign countries, but the Government's power to make domestic law by treaty has not led to grave oppression or any obvious violations of the Bill of Rights.

How the Fight Arose. Why, then, are constitutional provisions written in 1787 and left untouched until now suddenly under attack? Because recent years have seen what Secretary Dulles called a "trend toward trying to use the treatymaking power to effect internal social changes." Example: a Truman-appointed committee suggested in 1947 that certain provisions of the United Nations Charter gave the Federal Government power to enact "civil rights" legislation which could not have been enacted before the charter was signed.

What alarms Bricker & Co. is the possibility that, in this era of statism and the reform-by-treaty urge, the U.S. might enter into treaties that sooner or later could be used to enlarge the power of the Federal Government or even to dilute or undermine the Bill of Rights. Says Illinois' Senator Everett Dirksen, a red-hot supporter of the Bricker Amendment: "We are in a new era of international organizations. They are grinding out treaties like so many eager beavers which will have effect on the rights of American citizens."

Since 1945, the U.S. has:

P: Ratified the U.N. Charter, Articles 55-56 of which pledge members to promote, among other things, "conditions of economic and social progress" and respect for rights "without distinction as to race."

P: Endorsed (but not ratified) the Genocide Convention. Setting out to make mass murder an international crime (and it was a crime, whatever the U.N. might say or not say), a U.N. commission ended up with a complex document defining "genocide" to include "causing . . . mental harm" to members of "a national, ethnical, racial or religious group." Under such a far-afield provision, expressions of honest opinion might become crimes.

P: Helped draft a U.N. Covenant of Human Rights. Mrs. Eleanor Roosevelt was for two years chairman of the drafting commission, but the influence of delegates from the Soviet Union and other dictatorships is apparent in the document. The covenant dilutes such natural rights as freedom of religion, speech, press and assembly by mixing them with highly dubious "rights." Some of these "rights" would enlarge government powers instead of restricting them. According to the covenant, for example, the state is obliged to see to such things as "healthy development of the child" and "environmental hygiene" and "the right of everyone" to a job, fair wages, adequate housing, education and "a continuous improvement of living conditions." These goals are desirable, but if a government determinedly set out to provide them "for everyone" (which it could not do anyway), it would have to become even more totalitarian than, say, the Soviet Union.

When the steel strike came before the U.S. Supreme Court, Chief Justice Vinson gave an example of how lawyers, bent on enlarging the federal power, can use the existence of treaties in an effort to make domestic law. Vinson's main argument was that Truman derived a power to seize the steel mills from the existence of an international emergency. He buttressed this by recalling that the U.N. covenant and the North Atlantic Treaty bind the U.S. to resist armed attack against any member nation. In his view, Truman's seizure was justified, in part, by the obligation of the U.S. to keep up its promised deliveries of steel products to its allies.

Fortunately, Vinson's was a minority view. If the court majority had upheld the steel seizure, with an argument based partly on treaties, the Bricker Amendment would be a lot further along than it now is.

Dangers of the Amendment. Alarmed at the prospect of reform-by-treaty, or revolution-by-treaty, a Seattle lawyer named Frank E. Holman, then president of the American Bar Association, set out five years ago on a crusade to save the Constitution by amending its treaty-power provisions. Among the allies he enlisted was Senator Bricker, who introduced his now-famed resolution in September 1951, and reintroduced it in the first days of the 83rd Congress.

In its current form, after two major rewritings, the Bricker Amendment says: 1) "A provision of a treaty which conflicts with this Constitution shall not be of any force or effect." 2) "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty."

3) "Congress shall have power to regulate all executive agreements ... All such agreements shall be subject to the limitations imposed on treaties ..."

If adopted by two-thirds of the Senate and of the House and three-fourths of the state legislatures, the Bricker Resolution would become the 23rd Amendment. By applying the tight restrictions of Section 2 to all treaties indiscriminately, the amendment would undo what the Constitution's framers so carefully wrote. By requiring legislation before any treaty provision would take effect as internal law,* it would seriously slow up the processing of many common types of treaties. The "which would be valid" clause, a return to the spirit of the Articles of Confederation, would make the Federal Government less than sovereign.

The first part of Section 3 of the Bricker Amendment would cut deep into the President's constitutional authority to conduct foreign relations. The executive branch now makes an average of 100 agreements a day in the NATO setup alone. If Congress started "regulating" that process, the U.S. would get no international business done.

Where the Issue Stands. When the Bricker Resolution popped up in the 83rd Congress, Dwight Eisenhower and his Cabinet took a hard look at it and decided to fight it. Secretary Dulles and other Eisenhower officials last April rode up to Capitol Hill to appear before a Senate Judiciary subcommittee. Crux of their arguments: this is no time to throw a monkey wrench into the country's foreign-relations machinery. There is no need for safeguards against such treaties as the Human Rights Covenant, said Dulles, because the Administration does "not intend to become a party to any such covenant"--or to other treaties outside the "proper field" of international relations.

Bricker was not softened, but he did try to get around some of the Administration's objections by rewriting his resolution. The Administration was still far from satisfied. Last week Eisenhower & Co. and Bricker & Co. were huddling in a search for words that would satisfy both sides. They were not likely to find a formula. The President is determined to fight any amendment that would seriously damage either the country's foreign-relations machinery or the balance between the executive and legislative powers.

The Administration does not argue that the Bricker Amendment is totally pointless. It recognizes the same danger that worries Bricker and his supporters. But it contends that the present scope of the treaty-making power is necessary and that the nation has a safeguard in the requirement that treaties must be approved by the President and two-thirds of the Senators. As Secretary Dulles said in his testimony: "It takes quite an artist to amend the Constitution . . . The men who wrote it did a very good job."

*An arrangement the authors rejected in 1787, voting down a motion--the Bricker Amendment of its day--that no treaty would be binding "which is not ratified by law."

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