remarked, just as an example-sometimes we go roundabout to get a point. But as an example, that treaties are the only international instrument recognized or mentioned in the Constitution. Well, strictly speaking, that is not so. The Congress may approve a compact between States-or to put it another way, compacts between States or compacts between a State or States and a foreign nation shall not become effective without the approval of the Congress. That is a compact which is not a treaty and the provisions for approving it are not the same as for the treaty, which is two-thirds of the Senate. So the Constitution specifically in one instance does mention some instrument other than a treaty. Senator ERVIN. What provision? Dr. BYRD. What provision-I have to look it up. Senator ERVIN. Because I cannot recall it. Dr. BYRD. May I, just after I finish this? I will show it to you. Dr. BYRD. Exactly. I brought the book with me. Now, the point I was going to make is if the Congress has the power to approve a compact made by one State with a foreign nation, why shouldn't Senator ERVIN. I recall the clause about compacts between States, but that is part of the Union. Dr. BYRD. And with a foreign nation. Yes. The point I was trying to make is if the Congress has the power-I mean both Houses of Congress by simple majority-has a power to approve a compact between a State and foreign nation, it is a fairly reasonable inference they would have the power to approve a compact between the Federal Government and a foreign nation. That is one way that you get implications. Senator ERVIN. The Congress could take charge of foreign policy in that case and exclude the President. Dr. BYRD. No, not totally, I think, except by the appropriations route. Because, as I tried to point out in the very first of my statement, that one of the major distinctions that I have found historically between treaties and other agreements or shall we put it this way, between the foreign affairs power functions of the Senate on the one hand and the foreign affairs power functions of the House of Representatives on the other hand, is that the Congress combined has only delegated powers to the Federal Government, but that the treaty power goes beyond the delegated power there as such, and is in itself a substantive power, rather than merely procedural. So as I indicated some examples, subject matters over which it has never been held or even suggested that Congress may pass legislation with a simple majority of the Congress, domestic or foreign, that would involve these, or control these, things reserved for the State, but that are in treaties from the very beginning. The very first treaties have done this. So you have this very great distinction with regard to the Federal principle we have, since we are not a unitary government. Senator ERVIN. I think I have the clause. Article I, section 10: "No State shall, without the consent of Congress,*** enter into any agreement or compact with another State, or with a foreign power." Dr. BYRD. Yes, sir. Senator ERVIN. You construe that to imply that it authorizes Congress to make compacts with a foreign nation? Dr. BYRD. No, sir, I did not say that. Senator ERVIN. That is the reason I was asking you. Dr. BYRD. I said the Federal Government. What I would imply more specifically, would be there have been many more farfetched analogies drawn in law-and I am not telling you anything about this-than this, that if the Constitution recognizes that the Congress may approve an agreement with a foreign nation, made by a State, why in heaven's name couldn't it approve an agreement made with a foreign nation by the executive branch of the Government, which in the order of things, the national level would be much more important than that of a single, solitary State of the Union. Senator ERVIN. I believe that is a non sequitur because I think the expression of one thing is the exclusion of another, and here there is a specific expression. Dr. BYRD. Senator, if I may interrupt you. One of the problems in interpreting treaty power with being the only method—I know you do not do this but some do-as the only method of entering into international agreement, because the Constitution mentioned treaty and did not mention anything else, and the expression of that was exclusion of all others. I do not agree with any ironclad moves of logic in that direction. Senator ERVIN. Also, section 10 of article I says no State shall enter into any treaty. Dr. BYRD. Exactly. They may not enter into a treaty but may enter into an agreement. This is such a long way of getting around, perhaps, the point I was making whether inferential or explicit, the Constitution provides for an instrument other than a treaty. I maintain that is one way it does and also as mentioned by the Senator who testified previously, Senator Fulbright, he kind of agreed the recognition power amounts to agreement power. Senator ERVIN. Of course, I take the position that, as far as any agreement of substance, the treatymaking power is the only way an agreement can be made with a foreign nation. Dr. BYRD. Legally. Senator ERVIN. I recognize that a treaty has the force of law, and I also recognize that Congress has the power to legislate. I take the position, I think within the view of the Constitution, that the Executive has the power to make executive agreements to implement a treaty or a law, because his principal executive function is to see that laws are faithfully executed. Dr. BYRD. I am glad you mentioned the distinction between these because, strictly speaking, when an executive agreement is mentioned to me, after I studied this so many years, it does not relate, it makes 80-847-72- -6 no sense to me, just an executive agreement. It is either a combination of authority given by the Congress to the President, either by treaty or by statute, to enter into an agreement. And when that applies to other than treaty, I call that myself, to try to be more specific, a congressional executive agreement. Meaning invoking the powers of Congress and supplemented by the President in effectuating the power. Then, in addition, the third type is what I call presidential agreements, or international presidential agreements, either of which are with regard to usage. So you can understand one another, which power of the Constitution you are talking about when you say presidential agreement. What I call presidential agreement is the President invoking his own authority, and recognition agreement would be one of those, for example, you see. Senator ERVIN. Of course, there is a great deal of difference between students of the subject with respect to the meaning of the executive power of the President. Dr. BYRD Exactly. Senator ERVIN. Because some of them take the position that it gives the President some powers which are not expressed in the Constitution and, of course, I will have to concede two Supreme Court decisions lend some content to that. Dr. BYRD. I kind of presume you are talking about the inherent powers doctrine here which came out with Curtiss-Wright, for example. Would that be one you are speaking about? Senator ERVIN. Yes. Dr. BYRD. There is no one, I think, who has given more and stronger argument against that position than I have. I totally reject any idea of the inherent power doctrine, because by the very definition it means not subject to constitutional authority. Senator ERVIN. Yes. Dr. BYRD. And every individual, official in this country, as far as I am concerned, is operating legally under the authority of the Constitution, and no inherent power doctrine says he may do this or that just because he exists. Senator ERVIN. I take the position, further that the only powers are those expressly granted or reasonably implied from the powers that are made. I think maybe you and I are in substantial agreement on that. Dr. BYRD. Yes, indeed. Senator ERVIN. Now, regretfully, I have not had a chance to read your book. I look forward to reading it. Dr. BYRD. Thank you. Senator ERVIN. If you have no objection, I would like to place in the record, immediately after your testimony, your article on the "Constitutional Limits on International Agreements in the Space Age." Dr. BYRD. Certainly. Yes, indeed. Senator ERVIN. Thank you. (The document follows:) CONSTITUTIONAL LIMITS ON INTERNATIONAL AGREEMENTS IN THE SPACE AGE (By Elbert M. Byrd, Jr.1) Political scientist Byrd maintains that the Constitution as a flexible instrument can cope with the problems of the Space Age, if our social and political maturity can. He discusses limits on the treaty-making power, particularly rhen it affects federal-state relationships; the use of the commerce and international law clauses for international agreements; the effect of the unamendable equity of representation in the Senate clause; the "divorce mill” and “degree mill" problems; the status of aliens and their property; creation of new states; the Bricker Amendment; first amendment freedoms; the fifth, fourth, and fourteenth amendments; the feasibility of an international criminal court; article III and the sixth amendment respecting courts and jury trial; enforcement of an international arms control and inspection treaty in view of the constitutional prohibitions regarding search and seizure; other inherent powers of the President and implied and delegated powers of Congress.-Ed. It is occasionally reported that law school deans feel it is a mistake for law students studying constitutional law to read the Constitution because it will only serve to confuse them. As a mere example, the principle to be derived from the case of Marbury v. Madison 2 will come through with a great deal of clarity, but to attempt to derive the principle from the words of the Constitution will perhaps involve a frustrating experience. While the objectives of law school training need not be discussed here, an objective of "total" understanding might be much better served if students were first presented with a set of facts similar to those in the Marbury case, and instructed to find the "answer" in the Constitution before they turn to the reported case itself. As a generality, reported cases are of value. They are particularly significant when they record decisions on the same point in the same way throughout a long line of adjudications. They are of importance in those areas where previous cases have been overruled specifically or sub silentio, for the point in question is made clear and a new departure is afforded in terms of case law. Previous cases are also important, although less so, for the purpose of analogous reasoning or argument to a new but substantially related problem, particularly if the identical powers of government are called in question as between the two fact situations. But where there are involved powers of government which have never on a specific point been the subject of adjudication, and especially where the fact situations are also novel, it is likely to be found that reported cases are virtually useless. It is in the latter kind of situation that the Constitution itself must be reopened. One may also reopen the classical records, debates and commentaries on the Constitution when it was fresh from the pen. Often the historical records will be found to be useless, for obviously one is not going to find answers to such questions as whether or not radio waves are part of commerce. Occasionally the uncontested words of a founding father will provide absolute semantic answers to current questions, and the researcher's pulse will tingle at the discovery. But one soon notes that for some questions the mental picture behind the words could not possibly have included the physical facts pertinent to the researcher. And for other questions, even though technological development is not involved, semantical development may well be crucial. For example, after the federal government was established, it was often referred to as "Congress" by those who had become accustomed to referring to the old organization under the Articles of Confederation as "Congress." 3 Thus, when they used that word, one today is often uncertain as to whether they were referring to Congress or to the whole of the federal government. For another example, today's vocabulary certainly does not envision "the executive" as including the Senate of the United States, but one is not at all certain that the term did 1 Assistant Professor of Government and Politics, Univ. of Maryland, Author. TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITED STATES (1960). B.S. 1953, M.A. 1954, Ph.D. 1959, American University. 25 U.S. (1 Cranch) 137 (1803). John Taylor of Caroline, for example, spoke within a single paragraph of the treaty power having been surrendered to "the United States," to "the General Government,' and to Congress." 3 BENTON, ABRIDGEMENT OF THE DEBATES OF CONGRESS FROM 1789 TO 1857 14 (1857). not include the Senate when used in the 1790s, especially when used in connection with the treaty-making power.4 On the other hand, satisfaction cannot be obtained from a mode of seeing the Constitution and the objects of its powers only as the founding fathers could have seen them. So proceeding would involve the necessity of amending the Constitution every time there is a new techological development which demands regulation. Disregarding technological problems, such a procedure rejects the oft-made statements of the founders themselves to the effect that foreign affairs powers must be capable of meeting any new contingency, that "the circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed," as Alexander Hamilton stated; or as put by Edmund Randolph: "The various contingencies which may form the objects of treaties, are, in the nature of things, incapable of definition. The government ought to have power to provide for every contingency." There is certainly no foundation here for limiting the subjects of treaties to those which historically had been included up to the time of adoption of the Constitution, as has been intimated and inferred.8 Even today, as one's physical or intellectual environment varies, so will descriptive attitude toward the Constitution vary. United Kingdom scholars are often heard to speak of the United States Constitution as "rigid," ostensibly because it is rigid when compared to their own lack of a written constitution at all, but more probably because so much has been broadcast about unconstitutional absolutes. French scholars, Latin American officials, and students of American state governments are occasionally heard to marvel, however, about the "flexibility" of the United States Constitution-because their own are more specific, more detailed and lengthy, and consequently more often amended. Then there are the ambivalent impulses and attitudes within the breasts and minds of those who have sworn allegiance to the Constitution, and have vowed to defend it against all enemies whomsoever, domestic or foreign. To such a sacred and patriotic symbol is ordinarily due descriptive adjectives connoting praise and respect: "flexible" sounds more flattering than "ambiguous"; "a most perfect instrument, designed to stand the stress of time" sounds more noble than "a malleable instrument, subject to change as new problems are met"; fewer conflicting passions are aroused if one speaks of the Supreme Court as "interpreting" rather than "amending" the Constitution. Throughout the history of the Constitution it has been seen in many an extraordinary light. It is well known that to Hamilton it was so weak that it couldn't last beyond ten years.9 Edmund Randolph wrote to Washington about how "ambiguous is the language of the Constitution." 10 Patrick Henry and others thought it was "a conspiracy against the liberties of a free people." Thomas Jefferson feared that he was violating the Constitution by purchasing the Louisiana Territory, but his close friend the great strict constructionist John Taylor of Carolina came to the Senate to argue in favor of constitutionality on grounds of broad construction of the treaty power.11 Abraham Lincoln, apparently accordingly to his own lights,12 violated many parts of the Constitution, but in doing so he vigilantly upheld the part which at the time appeared most important to him, the requirement that he preserve and protect the Constitution.13 4 In discussing international agreements during the Jay Treatry debates in 1796, Abraham Baldwin said: "I considered that the executive has adsolute power to make peace, as by the constitution he is declared commander in chief of all the armies." Here "executive" and "absolute" power seem clear enough, but he immediately added, "that power was properly vested in him, guarded by two-thirds of the Senate DEBATES IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, DURING THE FIRST SESSION OF THE FOURTH CONGRESS UPON THE CONSTITUTIONAL POWER OF THE HOUSE WITH RESPECT TO TREATIES 132 (printed for Benj. Franklin Bache by Bioren & Madan 1796). 5 THE FEDERALIST No. 23 (Hamilton). 63 ELLIOTT'S: DEBATES 363 (1836). 7 Fraser, Treaties and Executive Agreements, S, Doc. No. 244, 78th Cong., 2d Sess. (1944). 8 Bricker, Making Treaties and Other International Agreements, 289 Annals 134 (1953). For similar expressions, see Holden v. Joy. 84 U.S. (17 Wall.) 211, 242-43 (1872); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569 (1840). 910 Lodge, THE WORKS OF ALEXANDER HAMILTON 425 (1904). 10 1 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 77 (1922). 113 BENTON, ABRIDGEMENT OF THE DEBATES OF CONGRESS FROM 1789 TO 1856 14 (1857). 12 Cf. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (1951). 13 U.S. CONST. art. II, § 1. |