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Periodical-pdf-am mercury-1953oct-41-48-

  1. 1. A UNITED NATIONS Make Our Laws? BY SENATOR JOHN W. BRICKER efforts are under way amendment. This proposal, SenateD ETERMINED to persuade the American peo-ple to let the United Nations make Joint Resolution 1, would limit the power to make treaties and execu-domestic law. These efforts, in many tive agreements. It would preventmatters, would substitute the United treaties and executive agreementsNations for state and national legis- from undermining the Constitutionlatures elected by the American of the United States and wouldpeople. Such authority to legislate largely prevent the use of treatiesfor the American people would be and executive agreements as substi-conferred, as has already happened, tutes for domestic treaty or by executive agree- The UN is anti-Communist, butment. The catch is this: When the much less firm in opposing Commu-UN, through treaties, makes laws nism than we. The UN is valuablefor the United States, our cherished as a forum — and it is the onlyconstitutional safeguards may be forum in which cold war tensionsabsent. can be considered on a regular and Most Americans object to having universal basis. The UN has thetheir laws made by a non-elected important function of striving tooutside agency. Accordingly, on maintain international peace andJanuary 7, 1953, sixty-three other security, and most Americans un-Senators joined with me in intro- derstand the need for co-operatingducing a proposed constitutional with the UN toward this end. 39 PRODUCED 2005 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED
  2. 2. The tAmerican Mercury Unfortunately, some Americans constitutional rights of minoritybelieve that the political philosophy groups.of the UN differs only slightly from An objective comparison of thethat of the United States. They are UN majority with the United Statesaccordingly slow to question the will also disclose tremendous dif-wisdom of having the UN legislate ferences in economic systems, stand-in American domestic matters when ards of living, political traditions,such legislation is urged as necessary religious and social customs. Not-either for national defense or in the withstanding these wide differences,interests of peace. There are others the United States must work inwho believe that the United States close association with the UN onshould some day become a province disarmament and other programsin a world government growing out designed to remove the overhangingof the UN. Naturally enough, they threat of war. These differences,oppose any limitation on the treaty however, make the UN an inap-power that could block that result. propriate and dangerous legislative A close examination of the United agent for the American people. S. J.Nations will show why the sov- Res. i would keep the power ofereignty of the United States must domestic legislation firmly in thebe preserved. Most of the UNs hands of the elected representativesmembers regard human rights as a of the American people. There, itsgift of the state which may be with- exercise is unquestionably subjectdrawn at any time. Our concept of to constitutional safeguards.liberty is stated in the Declarationof Independence and embedded in UN Treaty Law Superior tothe Constitution of the United the American ConstitutionStates. It is fundamentally a reli- Section i of S. J. Res. i provides:gious concept of freedom: "All menare endowed by their Creator with A provision of a treaty which con-certain inalienable rights," which flicts with this Constitution shall not be of any force or effect.government cannot reduce or abol-ish. Outside the United States, the Opponents of S. J. Res. i assertmost sacred rights are usually under that Section i is unnecessary. Curi-the control of an omnipotent execu- ously enough, many of them advo-tive or parliament. In the United cate the adoption of United NationsStates, authority is divided between treaties which are in clear conflictthree branches of government and with the Constitution of the Unitedfurther divided as between Federal States. They endorse, for example,and State governments. Not even the UN draft Statute for an Inter-the executive and legislative branches national Criminal Court. The courtcan pool their powers to defeat the created by this proposed treaty PRODUCED 2005 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED
  3. 3. Shall the United Nations Make Our £aws? 41would have power to try Americans Nations would be reluctant to ne-abroad for certain crimes committed gotiate treaties with the Unitedin the United States. The Sixth States, the validity of which isAmendment to the Constitution of tested by our Constitution. In anythe United States provides that the event, the UN has no right to com-accused shall be tried in the State plain if the American people insistand district wherein the crime was that treaties be kept subordinate tocommitted. the Constitution. In the entire history of the United The Founding Fathers recognizedStates, no provision of any treaty that the Constitution might havehas ever been held unconstitutional. to be amended from time to time.Most American lawyers believe that They provided in Article V severala treaty may be superior to the methods for amending it. To amendConstitution in case of conflict. For the Constitution, the approval ofexample, Secretary of State John two-thirds of both Houses of Con-Foster Dulles, before his appoint- gress and three-fourths of the Statesment to that office, said in a speech is required. Obviously, the framersin Louisville, Kentucky: of the Constitution never intended that it could be amended by the The treaty-making power is an President, two-thirds of the Senate, extraordinary power, liable to abuse. and a foreign power. S. J. Res. i Treaties . . . are, indeed, more su- would prevent the Constitution preme than ordinary laws for Con- gessional laws are invalid if they do from being amended indirectly by not conform to the Constitution, treaty. whereas treaty law can override the Constitution. Substituting the UN for State Legislatures Four members of the Senate The Tenth Amendment to theJudiciary Committee made the fol- Constitution of the United Stateslowing statement in the "Minority provides:Views" on S. J. Res. i: If we insist that the validity of The powers not delegated to the all the treaties to be made by the United States by the Constitution, United States must await some final nor prohibited by it to the States, determination as to their constitu- are reserved to the States respec- tionality, most nations will be most tively, or to the people. reluctant to make even essential Unless a particular subject comes treaties with the United States, and within the powers delegated to the the treaty-making power will be dealt a death blow. Federal Government by the Consti- tution, it must be dealt with, if at It is doubtful that the United all, by State and local governments. PRODUCED 2005 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED
  4. 4. ^American MercuryFor many years, it was felt that the until the formation of the UnitedTenth Amendment limited the Nations, treaties were limited totreaty-making power. Thomas Jef- subjects of genuine internationalferson, for example, expressed that concern. They continued to be, asview in his Manual for Parliamentary Alexander Hamilton expressed it inPractice when he said: The Federalist, "agreements between By the general power to make sovereign and sovereign" and "not treaties, the Constitution must have rules prescribed by the sovereign intended to comprehend only those to the subject." Today, however, objects which are usually regulated the treaty power is being put to a by treaties, and cannot be otherwise revolutionary use. Mr. John P. regulated. Humphrey, who was at that time It must have meant to except out Director of the UN Division of all those rights reserved to the States; Human Rights, wrote in the Jan- for surely the President and the uary 1948 issue of The Annals of the Senate cannot do by treaty what American Academy of Political Sci- the whole Government is interdicted ence : from doing in any way. What the United Nations is tryingTEFFERSONS understanding of the to do is revolutionary in character.O treaty power was repudiated in Human rights are largely a matter of1920 by the Supreme Court in relationships between the state andMissouri v. Holland, 252 U.S. 416. individuals, and therefore a matterFederal legislation to regulate the which has been traditionally re-shooting of migratory birds had been garded as being within the domesticheld unconstitutional by two dis- jurisdiction of states. What is nowtrict courts. To circumvent those being proposed is, in effect, the crea-decisions, a treaty was made. There- tion of some kind of supernationalafter, acting under the authority of supervision of this relationship be- tween the state and its citizens.the treaty, Congress passed legisla-tion similar to that previously held Since there is virtually no phaseinvalid. The Supreme Court in of human activity not proposed toMissouri v. Holland assumed that be regulated by treaty, Congress,the legislation was invalid in the with the help of the UN and a sym-absence of treaty. But the Court pathetic President and Senate, canheld that the treaty empowered become legislatively omnipotent.Congress to legislate in a field other-The experience of Canada proveswise barred to it by the Tenth that international co-operation doesAmendment. not require the destruction of a The danger inherent in the doc- Federal-State system of govern-trine of Missouri v. Holland was not ment. The Canadian Parliament,immediately apparent. From 1920 acting under the authority of a PRODUCED 2005 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED
  5. 5. Shall the United Nations Make Our £aws? 43treaty, cannot repeal legislation en- and until their parliaments made theacted under the constitutional au- treaty domestic law.thority of the Provinces. Similarly, Treaty provisions are necessarilythe United States should not, merely vague and ambiguous, particularlyby making promises to the UN, be where many nations are to confer on Congress legisla- In other countries, however, thetive authority denied to it by the national legislature can implementTenth Amendment. Accordingly, the treaty in the light of the desiresSection 2 of S. T. Res. 1 provides: of its citizens and peculiar local con- A treaty shall become effective as ditions. In the United States, on the internal law in the United States other hand, it may be many years only through legislation which would before the courts define the domes- be valid in the absence of treaty. tic effect of a treaty. By making all treaties require implementing legis-Substituting the UN for the lation to be effective as "internalHouse of Representatives law," S. J. Res. 1 would prevent N PRACTICALLY every other na- treaties from having far-reachingI tion of the world a treaty doesnot become domestic law until made and unintended consequences. The first words of the first Articleso by action of the national legisla- of our Constitution provide:ture. A different rule prevails in theUnited States by reason of our All legislative powers hereinunique treaty supremacy clause. granted shall be vested in a Congress of the United States, which shallArticle VI of the Constitution pro- consist of a Senate and House ofvides that all treaties made under Representatives.the authority of the United States"shall be the supreme law of the Without doing violence to thatland; and the judges in every State language, how can it be contendedshall be bound thereby, anything that a part of the legislative powerin the Constitution or laws of any is vested in the President, the Sen-State to the contrary notwithstand- ate, and some foreign power or inter-ing." national organization? The debates In dealing with other nations the at the time the Constitution wasUnited States is at an unfair disad- drafted and ratified show that thevantage. A treaty with the UN, for House of Representatives was ex-example, may immediately alter the cluded from any role in treaty pro-rights and duties of American citi- cedure in anticipation of the needzens without any legislative action for secrecy. The Senate, being thewhatever. However, the citizens of smaller body, was chosen as theother UN member states would Presidents partner. It was felt thatnot be affected by the treaty unless the House would be unable because PRODUCED 2005 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED
  6. 6. 44 The American Jtfercuryof its size to maintain the secrecy the making of all executive andof treaties. Much can be said for other agreements. If made a partthe making of secret treaties in of the Constitution, the Presidentpreference to secret executive agree- could not, merely by making aments. Where the treaty relates promise with some foreign power orexclusively to the nations external international organization, by-passaffairs, action by the House of Rep- the constitutional prerogatives ofresentatives should not be required. Congress and State legislatures.Section 2 of S. J. Res. 1 is concerned Some opposition to S. }. Res. 1 isonly with treaties that make "in- based on the erroneous belief thatternal law." Surely domestic legisla- an agreement not ratified by eithertion should not be adopted by Star house of Congress cannot becomeChamber procedure. Yet it is the the "supreme law of the land."presumed need for secrecy that ac- However, the Supreme Court heldcounts for the exclusion of the House in United States v. Pin, 315 U.S.of Representatives in the making 203,230 (1942):of internal treaty law. A treaty is a "law of the land"Substituting the UN for under the supremacy clause . . . ofBoth Houses of Congress the Constitution. Such international compacts and agreements as the N RECENT years, Presidents haveI claimed the power to decidewhether a particular international Litvinov Assignment have a similar dignity.agreement requires the approval of The Pin case involved the legalone, both, or neither house of Con- effect of an agreement made bygress. Some lawyers have argued President Franklin Roosevelt andthat treaties and executive agree- Maxim Litvinov. The State of Newments are wholly interchangeable. York, in distributing the assets ofThey contend that the treaty clauses the New York branch of a Russianof the Constitution have become a insurance company, refused to rec-sort of "constitutional vermiform ognize the validity of Communistappendix." It is greatly to the credit confiscation decrees. The Roosevelt-of President Eisenhower and Secre- Litvinov Assignment, not approvedtary of State Dulles that they have by either house of Congress, wasrejected this radical doctrine. Car- held to override the law of the Stateried to its logical conclusion, this of New York. It is true that the two-doctrine would enable the President thirds rule is some protection againstto become a dictator in both foreign the making of dangerous treaties.and domestic affairs. But only the advocates of executive Section 3 of S. J. Res. 1 confirms omnipotence can subscribe to thethe power of Congress to regulate view that the President and some PRODUCED 2005 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED
  7. 7. mm/me sues Shall the United Nations Make Our £aws? 45 foreign power, acting alone, should munist world lies in a strong, free, have power to make supreme law and independent America. Americas for the United States. strength in turn depends upon the release of individual energies made UN Uber Alles? possible by a government of divided AMERICANS who advocate making and limited powers based on the A . the United States a province concept that human rights are di- in a supranational state are reaction- vinely bestowed, and hence inalien- aries in the true sense of the word. able. That concept of liberty cannot The world experienced many cen- motivate a world governmen t in the turies of darkness and agony in free- foreseeable future. A majority of its ing itself from the world govern- members would not accept it. ment known as the Roman Empire. S. J. Res. i would protect the doc- In any massive consolidation of gov- trine of inherent rights against ero- ernmental power, tyranny is the sion by treaties and other interna- usual by-product. It is inevitable tional agreements. The preservation where the supranational govern- of our inalienable rights would not ment attempts to impose a uniform depend merely on the beneficence code of law and life on peoples hav- of the President and the Senate. The ing diverse political, economic, reli- American people would be the ex- gious, and social traditions. Fortu- clusive repository of their inherent nately, the Roman emperors could rights, and even they would be in- not fortify their huge prison with capable of surrendering their rights tanks and atomic bombs. except by further amending the The only hope for the non-Com- Constitution. » It is our true policy to steer clear of permanent alliances with any portion ot the foreign world. GEORGE WASHINGTON Farewell Address (September 17, 1796) » If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation. Ibid. PRODUCED 2005 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED
  8. 8. By Stan Hoig N THE HUMOR of every phase of our majesty of Niagara Falls promptlyI American frontier there has beentall-tale telling about the wonders of denounced them as a mere "waterin pot" and claimed that he could putnature. Lusty frontiersmen were for- up one that would "squirt it to aever ready to brag that their part of finish." Mostly, though, the cowboythe world had the biggest trees, the stuck to subjects common to thehighest mountains, the hottest sum- range. One such was the amazingmers, the coldest winters, or the suddenness with which the weatherstrongest winds of any. Such famous could change on the open prairie."liars" as Mike Fink of the Missis- This is illustrated in the claim madesippi river-boat breed, Davy Crock- by one cowhand that he always car-ett of the early Southwest, and Jim ried with him three necessary itemsBridger of the mountain men glori- of apparel: a linen duster, a rainfied their respective locales with slicker, and a buffalo overcoat. Heimaginative yarns that tested the never knew which he would be need-credulity of listeners. ing next. The old-time American cowboy A newcomer to the West, unawarewas not beyond a similar vanity for of how the climate could change sothe Land of the Cow Critters, nor abruptly, once made four harnessabove telling a few lies to defend it. tugs for his wagon out of greenTo him there was no place that could buffalo hide. The first time he usedmeasure shoulder-high to the range them he was caught in a suddencountry, and he was not the least rain storm that filled his wagon sobit bashful about saying so. If an full of water that he was forced tooutsider should comment on some get out and walk beside his team.scenic wonder in a place foreign to But when he got to where he wasthe cow country, the cowboy could going, he turned around to find thatbe counted on to top it with a won- his wagon was nowhere in sight. Theder of his own, actual or otherwise. green rawhide had stretched in the One Westerner who had listened rain, and the wagon was a full mileto an Easterner expound upon the behind on the tugs. The greenhorn46 PRODUCED 2005 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED