APPENDIX S. J. RES. 130 82D CONGRESS, 2D SESSION IN THE SENATE OF THE UNITED STATES February 7 (legislative day, January 10), 1952 JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States: ARTICLE SECTION 1. No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof. SEC. 2. No treaty or executive agreement shall vest in any international organization or in any foreign power any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President, and in the courts of the United States, respectively. SEC. 3. No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by Act or joint resolution. SEC. 4. Executive agreements shall not be made in lieu of treaties. Executive agreements shall, if not sooner terminated, expire automatically one year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President the life of any such agreement made or extended during the next preceding Presidential term. The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to appropriate committees of the Congress in lieu of publication. SEC. 5. Congress shall have power to enforce this article by appropriate legislation. SEC. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission. S. J. RES. 122 82D CONGRESS, 2D SESSION IN THE SENATE OF THE UNITED STATES January 21 (legislative day, January 10), 1952 JOINT RESOLUTION To impose limitations with regard to Executive agreements Whereas a treaty or an Executive agreement may be abrogated or superseded by a subsequent Act of Congress; and Whereas the right of Congress to set aside or vacate a treaty was recognized early by the Supreme Court; and Whereas Fxecutive agreements entered into by the President other than those limited specifically under certain circumstances to the exercise of his diplomatic powers also may be vacated by inconsistent legislation enacted by the Congress; and Whereas there is a present tendency to use Executive agreements rather than submit the international undertaking to the Senate in accordance with the constitutional requirements; and Whereas agreements requiring secrecy should be submitted to the Senate as treaties in accordance with the constitutional requirements; and Whereas other agreements to be binding should be published; and Whereas it is not only desirable but necessary that certain powers and duties of the Congress with regard to agreements and treaties be specifically exercised in a manner which will give notice to persons and nations entering into agreements with the United States and will thereby prevent future disputes: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That all Executive or other agreements entered into by the President with foreign governments or officials thereof, other than treaties submitted to the Senate in accordance with the requirements of the Constitution, shall be subject to the following reservations and limitations: (1) They shall be of no force or effect either as laws or as authorizations until and unless they shall have been published in full in the Federal Register. (2) They shall be subject to such legislative action as the Congress, in the exercise of its constitutional powers, shall deem necessary or desirable; and (3) They shall be deemed to terminate not later than six months after the end of the term of the President during whose tenure they were negotiated, unless extended by proclamation of the succeeding President. SEC. 2. Hereafter agreements or compacts entered into by the President with foreign governments or officials thereof requiring secrecy shall be submitted to the Congress as treaties in accordance with the requirements of the Constitution, otherwise they shall be of no force or effect except as personal undertakings of the President. Mr. PERLMAN. The curious thing about it is that some of the points you make here and some of the changes that were suggested then when it was before the Constitutional Convention in 1787 were the same ones as are being considered now-exactly the same objections were made and were debated, and it is interesting to find out why the delegates to the first Constitutional Convention came to the conclusions that they did. They were certainly a great people. They foresaw a lot of things. Senator DIRKSEN. Well, Mr. Perlman, I may say to you that in a general way I share your alergy toward modifiations in the Constitution, and I am glad that people generally in the country are quite sensitive on that point. But when we talk about the Founding Fathers, let us not forget that the Founding Fathers had no United Nations to deal with. Mr. PERLMAN. That is right. Senator DIRKSEN. They had no economic and social council. They had no international labor organization dominated by a socialistic trend of mind where 93 conventions are presently pending that those eager beavers are only too glad to get submitted to us. They did not have a couple of hundred perhaps of other conventions that are floating around in the United Nations at the present time. Mr. PERLMAN. I am sure the Senate will reject any one or all of them if they find they are not in their opinion needed. Senator DIRKSEN. That could be. Mr. PERLMAN. I believe that. As I have tried to say here and it has been said many times, up until recently the attitude, and I will not say generally but among many people, has been that the Senate was too restrictive in its consideration of proposed treaties and did not ratify when perhaps others thought en, overnight, it has turned the other way. se the Constitution more restrictive. I do not Le Senate has done to warrant a movement to take at. I think it has exercised it well over the . But I think you will agree, and I think everyne United Nations Charter had very considerhe time they convened in San Francisco until e archives of the State Department on the 4th withstanding all that discussion, no escape clause the United Nations Charter. You will agree at do you mean by an escape clause? I mean a way to get out. You would think nordealing with the matter of this kind that somebody estion, and I guess it was raised according to the 3acions Committee report, if you get in and you do how do you get out? But I defy anybody to find azter to get out, by joint resolution which of course ex and then of course it takes two-thirds of both Houses MAN UP»k the Congress of the United States can repu A. I am raising a very practical question. Future De endowed with wisdom of the present Senate. We 24 in mind. respect to that point, you are very familiar with Ce chapter 1, the essential clause: is moi n the present Charter shall authorize the United Nations nes which are essentially within the domestic jurisdiction sal require the members to submit such matters to settlement seat Charter. e determination? That does not say. I have looked g night after night. I find nothing there that says o determine what is essentially within the domestic juriscountry. Does the General Assembly do it? Does one aed commissions do it? Does one of the second echelon ? Does the Security Council do it? NAN. We have a delegation there that would take the posito arst instance. If they undertook to submit anything, if dndertake to submit something that was prohibited by that Con, certainly the two-thirds of the Senate would not ratify any Na PIRKSEN. But they ratified this. WATKINS. Our representatives have been sitting in these and these groups that have been forming these proposed treatey have been doing it all along, they have been parties to it. The CHARMAN. They have a big propaganda machine costing milNoss of dollars. A. PERUMAN. Let me say one more thing, because I would like to ent upon some statements made by the Senator from my own He was discussing the Fujii case. It is true that a court, I Neve it is called the court of intermediate appeal in California, did undertake to invalidate an act of California on the ground that it was prohibited by the Charter of the United Nations. Senator BUTLER. Two acts. Mr. PERLMAN. I think there were two acts involved. Senator BUTLER. Mixed marriages and ownership of property. Mr. PERLMAN. Those cases were appealed to the Court of Appeals of California and those decisions were reversed. They are not the law even in California or anywhere else. Senator BUTLER. I thought I made it clear it leaves the law of California completely up in the air. Mr. PERLMAN. No. You said one court decided it one way and the other court decided it another way. But the highest court reversed the lower court and therefore the original decision has been wiped. out. Mr. HOLMAN. That applied to the charter. In their majority opinion they wrote about the Charter of the United Nations. They said it was a moral as well as a legal commitment which the court should not lightly overload. With that in their mind, they put the decision on the 14th amendment. Mr. PERLMAN. Yes; they reversed the lower court. I might say to the committee that when that decision was handed down, the first decision, the State Department was in touch with the Justice Department about it. Both the State Department and the Justice Department agreed that that decision was in error, and the question that we debated was whether we should intervene in the court of appeals-I think it is the Supreme Appellate Court, they call it, of California, the highest court-and we decided that we would not intervene at that point because we did not want to be charged with having the Federal Government interfere frequently in State matters. We thought that we would wait until the Supreme Court of California had passed on the question, and if that court happened to affirm what we thought was an erroneous decision, that we would then ask the Supreme Court of the United States to issue a writ of certorari in order to review it. It never became necessary because the court of appeals reversed it. Senator BUTLER. Isn't it true last June in the State of Idaho, didn't they invoke the Charter of the United Nations when they had a witness on the stand and refused to let the witness answer the question of whether or not the husband or the wife of the witness was a nonresident alien, because to have done so would have been a violation of the Charter. That was just last June of 1952. That thing has saturated the whole domestic jurisdiction of our States. Mr. PERLMAN. Nobody can foretell what some judge might rule in a particular case, no matter what the laws are. That is the reason there are appellate courts. Senator BUTLER. Do you have any idea what happened in that case? Mr. PERLMAN. I do not recall. Senator WATKINS. Is it not a fact that because the Supreme Court judges, some of them, took the stand they did and the stand you are now taking, these other courts have taken, it has really rung the alarm. over the country as to what may happen? All you need is the change of a few more judges and you will get it just the way you people are contending. It seems to me we certainly have every justification for moving in this direction now. Mr. PERLMAN. I do not know what you mean by that, Senator. You say the way we are contending. Here I am just contending that ve leave the Constitution the way it is. We are for it. I am asking you to let it alone. Senator WATKINS. If we debated the Constitution, we would not ave any argument. They argue it one way and do the opposite. We want to make it so clear there will not be any doubt about it. Mr. SMITHEY, Mr. Perlman, are you in agreement with the position of the State Department that there is no longer any real distinction Zetween jomestic and foreign affairs as set forth in the State Department Proteation 2972, Foreign Affairs Policy Service 26, released September 1960, with a foreword by President Truman? Mr. PERMAN. I do not recall that. 1. SPREY. Are you in agreement with it? MI. PREMAN. I would not pass on any declaration unless I read the g. Gert 13or't know in what context it appears. Mr. Hooo. While Mr. Perlman is here, if I may, in order to te position of the American Bar Association, I would like he end at this time a roster of the members of the house swer I have just taken from our official red book for this |