perhaps no more impeccable than that of the previous approach, but on more than one occasion eminent authorities have pointed out that logic has not been the sole or even most important pathway of the law. One may refer again to Reid v. Covert 70 for dicta which may be read as conflicting with the above theories, but a treaty was not at issue in that case, and neither did the case involve a trial in an international court. Perhaps to belabor a point previously stressed, and in spite of the author's or others' current opinions, the constitutionality of an international criminal court may be sustained in the future by the reliance on no other constitutional and judicial resources than those presently available.

Another example of a possible problem of the future is related to the question of whether an international arms control treaty could be enforced in view of the constitutional prohibitions regarding search and seizure. The fourth amendment prohibits "unreasonable" searches and seizures, and seems to say that not even "reasonable" searches and seizures shall be carried out except under warrant based upon probable cause, etc. Although this prohibition seems not quite so unequivocal as, for example, the right to trial by jury previously discussed, it does, nevertheless, appear virtually absolute in vacuo. Entirely exclusive of the existence of a treaty touching on the subject, many questions in the decisions have arisen in the past. They include the approval of use by federal officials of evidence obtained by private parties as a result of search and seizure without warrant (stolen evidence); 71 and they include the approval of the use by federal officials of evidence obtained by state officials as a result of search and seizure without warrant.72 In other words, methods have been used legally "to get around" the prohibition in cases solely in the domestic field, and in cases where the crucial factor was the obtaining of evidence to convict for criminal offenses.

In the case of an effective treaty to provide for inspection in order that forbidden nuclear materials may be discovered, it may or may not provide for punishment of private parties for violation of the treaty provisions. If it provided for punishment, then the admissibility of evidence seized without warrant may be disallowed in a federal court if the seizure were by federal officers. Admissibility in an international court may be another matter; or admissibility in a federal court of evidence so seized by international officers may likewise be another matter. But the admissibility of evidence, or conviction of violators, would not be the critical factor as to the effectiveness of a nuclear-inspection agreement.

Prosecution and conviction of private parties for the possession of nuclear matter would doubtless be helpful as a deterrent to treaty violation, but the crucial factor in implementing a nuclear-inspection agreement would be discovery and seizure of the nuclear material itself. Prosecution of the illegal possessor may well be viewed as an entirely secondary matter. As a result of Geiger counter indications, for example, forceful entry and seizure may follow without any further action to punish the offender, and this may be all that is required to carry out the treaty satisfactorily. If no attempt is made to prosecute the offending possessor, it is doubtful that he would be anxious to attempt to bring litigation against the inspection team, if he were a guilty possessor, either in a civil or criminal action. If he were innocent, the Geiger counter having been activated by non-nuclear materials as an example, he may well be provided with an action under Court of Claims process in the case of property damage. In either event, the activities of the inspection team would be effective.

At least until recently, a more difficult question would seem to be whether an individual could be punished for refusal to allow entrance to his property, or for forcefully resisting entrance, by an inspection team without warrant. As to the refusal of entrance to a health inspector who wished to enter to inspect for rats, the Supreme Court in a five-to-four decision upheld conviction for refusal,73 and one of the main reasons for affirming conviction was that the case 70 354 U.S. 1 (1957).

71 Burdeau v. McDowell, 256 U.S. 465 (1921).

72 Cf. Kohn, Admissibility in Federal Courts of Evidence Illegally Seized by State Officers, 1959 WASH. U.L.Q. 229.

73 Frank v. Maryland, 359 U.S. 360 (1959). Cf. HENKIN, ARMS CONTROL AND INSPECTION IN AMERICAN LAW (1958). Although published prior to the Frank case, the Henkin study is very comprehensive, dealing with many factors of arms agreement enforcement in addition to that of search and seizure. Among other conclusions: "The Second Amendment. . . confers no absolute right to bear arms." Id. at 38.

did not involve search for evidence for a criminal prosecution, but involved a search to protect the minimum community standards of health and well-being. Certainly the activities of a nuclear inspection team would also be viewed as involving community well-being, and in all probability to a higher degree than the activities of a health inspector looking for rats. There is some slight difficulty here because this was a state rather than a federal search, and involves the rather nebulous area of whether the fourth amendment is incorporated in the fourteenth. The majority opinion, as viewed by Justice Whitaker in a concurring opinion,74 did view the fourth as part of the fourteenth, thus resulting in the proposition that such a conviction would also be upheld in the federal jurisdiction. It thus becomes apparent that the fourth amendment would not prevent the effective enforcement of a treaty providing for inspection teams to search for unauthorized nuclear material.

It seems only a short while ago that it would have been fantastic to think of searching for nuclear materials or atomic devices that may be in the possession of private parties. The production of the first atomic bomb was so astronomically expensive that it could not be easily conceived that any entity other than a government could produce one-and the government of a very rich nation at that. It is apparently true, however, that officials of the Atomic Energy Commission were several years ago apprehensive that a simple method of producing atomic bombs might be discovered. One scientist was reported as saying that "one of the things which gives us nightmares is that one of these days someone will stumble on a simple method of making atomic bombs in the bathtub." 75 Press reports now indicate that some such thing has virtually come about. A West German scientist is supposed to have perfected a small machine which, "as soon as it can be industrially produced, will enable any country, at relatively small cost, to provide itself with as many atomic weapons as it wishes. The West German scientist is selling his invention to all

those who wish it." 76 Whether or not this report is literally true 77 does not alter the probability of such a development in the near future, and thus the complexities of the Space Age grow larger. It may well eventuate that the nation will have to institute something in the nature of nuclear-inspection teams by legislation without regard to international agreement. Furthermore, the foregoing discussion pertains only to some of the constitutional aspects of the problem. It must be emphasized that no inference should be drawn to the effect that a treaty on limitation and control of nuclear devices can be negotiated or ratified; and no inference should be drawn to the effect that such an agreement could be drafted that would be satisfactory within the complex of military and technological limitations and possibilities. The effectiveness of even such proposals as the "open skies" plan is highly doubtful.78

IV.

In this paper examples of constitutional limitations as affecting international agreements in the Space Age have been emphasized only in regard to the treaty power, exercised by the President with the approval of two-thirds of the Senators present.79 Nothing said has been intended generally to apply to agreements made by the President under his own constitutional powers, nor to those made by the President as authorized by a simple majority of the Congress exercising its delegated and implied powers. In some situations the limi

74 Frank v. Maryland, 359 U.S. 360, 373 (1959) (concurring opinion). In the very recent case, Mapps v. Ohio, 364 U.S. 868 (1961), the Supreme Court by a 5 to 3 decision made the Fourth Amendment's search and seizure requirements applicable to the states, reversing Wolf v. Colorado, 338 U.S. 25 (1949).

McGill, The Passing Scene, Evening Star (Washington, D.C.), Oct. 31, 1960, p. A-10, col. 6.

76 Ibid.

77 In a press release of December 14, 1960, the Atomic Energy Commission may have been referring to this technique when it spoke of the "gas centrifuge" technique, saying that this process was not cheap and that it would take even a highly advanced nation an estimated eight years to produce an atomic weapon by this method. But in a television interview on December 18, 1960, the Chairman of the Atomic Energy Commission indicated that Israel was well on the way to becoming a nuclear power.

78 For a lucid exposition of the strategic, technological and practical aspects of the dilemma, cf. Wohlstetter, The Delicate Balance of Terror, 1959 FOR. AFF. 211-34. Cf. also Arms Control, Daedalus, Fall, 1960 (Journal of the American Academy of Arts and Sciences).

79 U.S. CONST. art. II, § 2, cl. 2.

'tations on agreements other than treaties are the same as those applicable to treaties; in other situations limitations apply to agreements which would not apply to treaties. As to details, the constitutional differences between these three types of international agreements rest on such complex variables as to dictate that the better part of valor is to say nothing of the subject unless much more is to be said than is possible here.80

One power of the Congress, virtually dormant since the federal government's existence,81 may deserve having attention called to it, however, even if only briefly. This is the power given to Congress by article I, section 8 "to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." The researches of the writer have revealed very little in the way of any explicit understanding by the founding fathers of the extent of the power thus delegated. The debates in the Constitutional and Ratifying Conventions hardly ever recorded a mention of the power, and when referred to, the reference comes down to today shrouded in vagueness. Monographs on the subject do not attempt to deduce exactness as to what was meant.82 Taken in its literal sense, the power to "define and punish Offences against the Law of Nations" is a vast power indeed. True, one may argue that this "definition" may mean only selection of certain offenses from the broad field of common international law. Intermediately, it may be argued that "definition" is confined to description of offenses involving direct contact between persons of different nations. Or by broadest construction it may be argued that "definition" of an offense against international law means that Congress can define whatever act it sees fit as an offense against international law, and provide punishment for that act. Under this last approach it could define as such offenses possession of nuclear material, lynching or attacking a foreign national, discrimination by state officials against foreign nationals (as in discriminatory land ownership, inheritance, or practice of professions), or genocide. The list of possibilities can, of course, be extended much farther. By such a broad interpretation, particularly in connection with the other delegated powers of Congress, the treaty power might eventually come to be an un-needed provision. with approval of all "treaties" consummated by simple act of Congress.

If one should aver that the founding fathers would twirl in their graves if they knew that such a construction of the international law clause were adopted in, say, 1975, would not one have to say that they were already rapidly twirling prior to 1961? Would they have dreamed that Congress would some day view it as necessary and constitutional to appropriate funds blindly, in unknown amounts, to staff a large intelligence operation? Would they have dreamed that Congress would authorize the executive to investigate the loyalty and trustworthiness of Congressmen and refuse "security" clearances to Congressmen to inspect military installations? Would they have dreamed that Congress would authorize the President in advance to make "war"? If these and many other developments are such as would astound the founders as to what may be done under the Constitution, why should Americans today think they are to be immune to constitutional developments which to them are astounding?

The fact is, of course, that were the Constitution not flexible, including the prohibitions, the Constitution would have perished long ago. The adjectives are not important. It may be called flexible or vague or ambiguous or self-contradictory. One may speak of interpreting it broadly or loosely, of twisting or perverting its words. All this may be said, and still it may be replied that it's a constitution that is being expounded, that the people may reverse the interpretations if they dare. If they do not dare to do so during the cataclysmic days of the early Space Age, and even if the language of the Constitution were virtually turned inside out, still the ideal or the hope or the myth of rep80 This complex problem is the principal subject of the present author's TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITED STATES: THEIR SEPARATE ROLES AND LIMITATIONS (1960).

81 Mainly used only to provide punishment for the counterfeiting of foreign nations' currency.

82 Cf. PERGLER, JUDICIAL INTERPRETATION OF INTERNATIONAL LAW IN THE UNITED STATES 222 (1928). In a long article by Dumbauld, John Marshall and the Law of Nations, there is not a word on the international law clause of the Constitution. The article was prepared for the John Marshall symposium issue 104 U. PA. L. REV. 38 (1955), and is reprinted in THE MARSHALL READER 176 (Surrency ed. 1955).

resentative government and popular sovereignty is maintained. Meanwhile the habit of reference to a fundamental law shall have been practiced, even if the practice includes some strange yet realistically required semantics.

If the citizens of the United States fail to flourish or survive in the Space Age, it will be the forces of technology or lack of wisdom, a strong enemy or moral degradation, mis-directed energy or just misfortune, or a combination of all of these which will be responsible. The Constitution will be blameless.

Professor MILLER. Dr. Byrd, I wonder if you would comment, please, on your conception of the power of the Congress to enact a bill such as under discussion, S.3475, which requires an executive agreement to be submitted to Congress for its approval.

Dr. BYRD. If I understand the question, meaning whether or not the Congress has the authority to enact such a bill?

Professor MILLER. Does Congress have the constitutional power, in your judgment, to do this?

Dr. BYRD. I think with regard to the authority, that it has the constitutional authority to enact.

Where some of those international agreements would involve a subject-there is no definition of the executive agreement or international agreement that some of those, if especially involved would be the presidential agreement alone, that would be, I am almost persuaded to say, unconstitutional. But at least I would say irrelevant. Professor MILLER. Would you expand on that and give us some examples of what you have in mind of this type of agreement?

I think the recognition of foreign governments, for example, might be implied from the power to nominate and appoint ambassadors. You also said a moment ago, in response to Senator Ervin, that you did not believe there was such a thing as inherent powers. Now, would you tell me what types of agreements fall within the category then of the international agreements and the President's power?

Dr. BYRD. Well, I certainly will not be exhaustive.

Professor MILLER. No; give three or four.

Dr. BYRD. One example, you also mentioned, the recognition power.

Professor MILLER. That could be implied, I take it, from the terms of the Constitution.

Dr. BYRD. Yes. Furthermore, as Commander in Chief of the Armed Forces, meaning the Armed Forces in existence, remembering that the Congress has limited itself to appropriating funds for 2 years for the military, to try to prevent military establishment.

Professor MILLER. What type of agreement do you have in mind? Dr. BYRD. The Commander in Chief, in the exercise of his plenary discretion, ordering powers of the military, may say in a table conversation with a foreign chief of state, that in the event such and such occurs, "I will send 10,000 troops."

Professor MILLER. Are you suggesting, then, that this is the type of presidential agreement which Congress cannot meet at all under constitutional power?

Dr. BYRD. Yes. It cannot meet, as I understand the word "meet." Professor MILLER. And you base that, on the notion of plenary power in the Executive?

Dr. BYRD. When the power of the Commander in Chief is given to one person, yes. I call that plenary power.

80-847-72-7

Professor MILLER. The question is, of course, whether the power over the Armed Forces includes the power of Congress to raise and support armies.

Dr. BYRD. Absolutely.

Professor MILLER. So you imply there, at least, a shared power. You are not suggesting the power of the President is absolute over the military forces, are you?

Dr. BYRD. No. Not in terms of size and certainly not in terms of regulations. For example, the "articles of war," they used to call it, that the Constitution specifically authorizes the Congress

Professor MILLER. Áre you suggesting that in certain agreements, such as the commitment of, say, 50,000 troops to a certain area of the world by the President, that the Congress could have nothing to do about it whatsoever?

Dr. BYRD. Not 50,000 troops, if I understand you correctly-
Professor MILLER. That is correct.

Dr. BYRD. That are already in existence?

Professor MILLER. YES.

Dr. BYRD. That is right.

Professor MILLER. The Congress has no power whatever?

Dr. BYRD. Not to stop the exercise regarding those 50,000 troops, no sir.

Professor MILLER. Suppose they cut off the funds, what would happen then?

Dr. BYRD. That is exactly what I said to the Senator. If they cut off totally, there will be pretty soon no 50,000 troops.

Professor MILLER. Then, you are arguing some sort of notion of the power that is not inherent. It is a very, very strong implication from a Commander in Chief power that there are certainly agreements Congress cannot touch.

Dr. BYRD. Yes, but that is not inherent.

Professor MILLER. Pardon?

Dr. BYRD. But that is not inherent. There is no argument for inherent power.

Professor MILLER. How would you label it?

Dr. BYRD. I already said, the President has plenary power, meaning absolute power.

Professor MILLER. That is the question.

Dr. BYRD. Over the deployment of the military forces in existence. Professor MILLER. But what do you base that on?

Dr. BYRD. The Commander in Chief clause.

Professor MILLER. What is your basis for saying he has absolute power?

Dr. BYRD. Because, when you have absolute military power as a Commander in Chief there is no limitation upon those powers.

Professor MILLER. But that is the question, sir. Give us some reasons for it.

Dr. BYRD. Then you are asking me for constitutional history regarding the writing of that article?

Professor MILLER. Are you basing it on the constitutional practice of past Presidents, is that it, or what the Founding Fathers said?