What the Amendment Means
FORKOSCH, MORRIS D.
What the Amendment Means A legal analysis By Morris D. Forkosch Senator John W. Bricker's attempt to amend the Constitution has occasioned a great national debate. The Ohio Republican's amendment...
...The State Department lists twelve: one with the Bonn Government arising from the validation of West German bonds, another with NATO concerning the status of each nation's forces when stationed abroad, etc...
...Acceptance of Sections 2 and 3 of the Bricker proposal—especially the former—would be a serious blow to the capacity of U. S. foreign policy to meet the international challenges it must face almost daily...
...a self-executing treaty repeals prior conflicting statutes...
...It means, too, a weak negotiator in war and in peace...
...Included in these twelve are treaties of friendship, commerce and navigation with Denmark, Greece, Israel, Japan and West Germany...
...Furthermore, even now the Senate has power, by a simple reservation, to declare any treaty non-self-executing...
...There has never yet been a precise case of this kind...
...If a treaty were to affect such areas at all under the Bricker proposal, the forty-eight state legislatures would each have to enact separate legislation approving the treaty commitment...
...If a treaty conflicts with the Federal Constitution or Federal law, which governs...
...But Congress, after such a treaty is ratified, may pass conflicting legislation which would supersede the treaty...
...In theory, therefore, Congress cannot invade the state's powers...
...This means a major transfer of Executive power to Congressional hands...
...But can a treaty become the basis for a Congressional power not found in the Constitution...
...This was the situation our Founding Fathers attempted to overcome in Article VI...
...In other words, the latest particular treaty or law wins out—although the judiciary must decide whether or not an ambiguous treaty is self-executing...
...Congress passed legislation under the treaty, empowering the Secretary of Agriculture to regulate the hunting of the birds, subject to the act's penalties...
...The "which clause" also results in a reversion to the pre-1787 days...
...What powers does Congress have in the field of legislation...
...In the same manner, Congress may denounce an entire treaty...
...The national well-being," he said, "required 'national action' when 'the states individually are incompetent to act.'" Nothing in the Constitution specifically prohibits the statute, continued Holmes, and "the only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment...
...In Section 1 of the proposed amendment, any treaty provision conflicting with the Constitution is declared ineffective...
...Since "a national interest of very nearly the first magnitude is involved," and protection can be accomplished only by "national action in concert with that of another power," Congress had power so to act, especially since "The subject-matter is only transitorily within the State and has no permanent habitat therein...
...The reliance is vain...
...How many pacts are there which lie outside the delegated powers of Congress and, in the absence of treaties, belong to the states...
...The Missouri v. Holland decision is, therefore, at the heart of the Bricker Amendment dispute...
...This question is answered in the famous 1920 Migratory Bird Case of Missouri v. Holland...
...Justice Holmes wrote the Supreme Court opinion upholding the legislation...
...In these cases, a very careful Senate excluded, by reservations, any aliens from practicing state-licensed professions limited here to American citizens...
...But the states also have their own powers, which, under the Tenth Amendment, are "reserved" to them except insofar as they are delegated to the United States or prohibited by the Constitution...
...It is Section 2 which repeals Missouri v. Holland...
...Since this already is the Supreme Court's view, this section is unnecessary, and one Administration substitute was willing to continue this thought...
...What is more, it attacks our constitutional system on two levels, the weakening of either one being itself sufficient to create a major crisis in our national and international affairs...
...In the event a treaty conflicts with Federal law...
...It may contain provisions which confer rights upon individuals and which can be enforced between private parties in this country...
...Section 3 of the Bricker proposal gives the Congress power "to regulate all executive and other agreements with any foreign power or international organization," making these "subject to the limitations imposed on treaties by this article...
...It states that a treaty can become effective as internal law "only through legislation which would be valid in the absence of a treaty...
...It may operate within the nation as self-enforcing, or may require Congressional legislation to become law...
...This made it possible for a British creditor to sue a Virginia debtor who, relying on the statute, had paid the debt to the State of Virginia and been given a discharge of the debt...
...Some areas of law, though, are within the state's purview insofar as any Federal-state concept is involved...
...What physical and legal horrors these consequences may bring is problematical, but there can be no doubt that the President's freedom of action is circumscribed, limited and, perhaps, even nullified...
...Treaties also supersede state laws of limitation, which bar collection of a debt after a certain period of time, state laws concerning rights of aliens to inherit property, etc...
...The Bricker Amendment is aimed, specifically, at the Supremacy Clause in Article VI of the Constitution, which states: "This Constitution and the laws of the United Slates which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United Stales, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any Stale to the contrary notwithstanding...
...In the event of conflict with the Constitution, the Supreme Court has already indicated, the treaty would be ineffective...
...Under it, a treaty cannot become internal law except through Federal legislation which would be valid in the absence of such a treaty...
...For example, the 1783 peace treaty between Great Britain and the United States was construed, in the 1796 case of Ware v. Hylton, as nullifying a Virginia statute...
...The Federal Government signed a treaty with Britain for the reciprocal protection of migratory birds making seasonal flights between Canada and this country...
...e.g., a Federal law concerning marriage would be unconstitutional...
...If a treaty is not self-executing, legislation by Congress is required to make it internal law...
...The Ohio Republican's amendment is intended to restrict the treaty-making powers of our Government's executive branch...
...Thus, Congress may legally repeal a self-executing treaty clause without terminating the treaty...
...Under this clause, therefore, a ratified treaty becomes the supreme law of the land...
...We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed...
...This is the famous "which clause...
...Thus, the Bricker Amendment alters drastically the procedure whereby treaties are made, and the substance or contents of these treaties...
...It is not sufficient to rely upon the states...
...But for the treaty and the statute, there soon might be no birds for any powers to deal with...
...Bricker proponents carefully overlook the aforementioned qualifications of Holmes in the Migratory Bird opinion and also his statement that "We do not mean to imply that there are no qualifications to the treaty-making power...
...the "which clause" would revive it...
...The "enumerated" powers of Congress with respect to legislation are found in Article I, Section 8, first 17 clauses...
Vol. 37 • February 1954 • No. 5
