SHOULD WE ADD THREE LITTLE WORDS TO OUR CONSTITUTION?
S)enatosr Hennings: There have been
several proposals in
the past to place additional limitation on
the President's treaty-
making powers under
the Constitution, and
all have failed. The
most recent attempt
is an amendment
offered by Senator
Dirksen of Illinois. While seemingly
harmless, it could have disastrous effects on the conduct of our foreign
relations by any President.
Previous versions of the amendment have read, and I quote, "A provision of a treaty which conflicts with
this Constitution shall not be of any
force or effect." The new version has
added the three little words, and I
again quote, "any provision of," so that
the new test of constitutionality is not
whether there is a conflict with our
Constitution, but whether there is
conflict with any provision of our Constitution.
Now what would the added words
accomplish? I submit that if they are
interpreted to be harmless, they are, of
course, unnecessary. And if they are
interpreted to have an effect, they are
indeed very dangerous.
First, let's consider their necessity.
The wording of the Dirksen amendment clearly implies that at present a
treaty or any other international
agreement may override the Constitution. And I know this misconception
has been widely circulated. Fears
have been aroused that our individual
liberties, guaranteed by the Bill of
Rights, could be destroyed under the
guise of a treaty. Of course, there is
no truth whatever in this statement.
The Supreme Court on many occasions has stated that the Constitution
is supreme over all laws and treaties.
Furthermore, even if a particular
treat) is valid under the Constitution,
Congress may nullify its effect as domestic law if the Congress so desires.
Again, it is said that this amendment would insure that treaties can
cover only subjects that properly pertain to foreign relations. This, too, of
course, is unnecessary. This concept is
already firmly established as proved
in the Judiciary Committee Beport
which advocates the adoption of this
If, in the future, some treaty were
made covering a subject which did not
properly pertain to foreign relations,
it would fail under the Constitution
as a fraud on the treaty power.
And now I'd like to come to the
dangers of this amendment, this so-
called Dirlcsen amendment. We face
a new rule of interpretation. Our Constitution, instead of standing as an
organic whole, might be interpreted
piece by piece contrary to centuries
of legal practice. A carefully constructed system of checks and balances
would be overturned and the President demoted as leader in foreign
Particularly under attack is the
little-understood area of international
agreements which the President is
authorized to make on his own under
his power as President to conduct the
foreign relations of this country. If the
Dirksen amendment were adopted,
Article 1 of the Constitution giving
legislative power to Congress to regulate foreign commerce, might, for example, be taken out of context.
Now the founding fathers of course
intended that it be read together with
Article 2 giving the President the
power to conduct our foreign relations. The Dirksen amendment would
thusly operate as a power-play to shift
the prime responsibility for the co*
duct of foreign affairs from the Pre]
dent to the Congress. Such a redisO
bution of our constitutional powa
would create more problems than
would solve. It is simply impossible]
provide a constitutional restrict!
which will prevent agreements
may not like without also eliminate
Executive powers we know our g<
ernment must have, especially in tin
very desperate clays.
The new rule of construing the O
stitution might invalidate parts of 0<
existing treaties of friendship and co<
merce, road conventions, narcot
drug control treaties, alien proper
agreements, and many other treat*
that are necessary to protect the rigl>
of American citizens abroad. Congrt
would not normally legislate in nial
of these areas.
The necessity of associating W
other nations, however, requires 1
United States to act as a unit in i
eign affairs and to make treaties j
these subjects. We would virtually I
forced to return to the chaos of "1
Articles of Confederation in effect lj
fore the Constitution was adopt?
which taught the framers of the C<>\
stitution that the present system ^
"Vigilant Women Oppose New Text
Excerpted Irom April, 19S6, Newsletter ol Vigilant Women lor the Bricker Amendment.
WHEN the new Dirksen version
of the Bricker Resolution
was announced, we withheld
comment. . . . We have listened with
understanding if not with sympathy
to the argument that "This is the best
that can be gotten at this time." We
have discovered, however, that those
who talk about this being "the best
.... at this time" really mean that this
is all they hope to ever get. . . .
We have concluded that it is better
to continue our fight for an effective
amendment. . . .
Needless to say, we are sorry that
our leaders felt they must compromise
this vital issue. ... As Dean Manion
has ably said, "When public demand
for protection against treaties is increasing by leaps and bounds every
hour, why should we accept anything
but unequivocal protection in lan
guage that no court will dare to tf*
Our position has been set forth
detail in a letter to Senator Brickefi1
copy of which follows . . .
April 20, 1936
Dear Senator Bricker:
It is our understanding that you "M
accepted the new Dirksen version of a P^[
posed constitutional amendment as in®
porated in the Bricker Resolution ;1
whieh was favorably reported by the Sj
ate Judiciary Committee
We actively solicited support for JJJ
original Bricker Resolution. We would '
lave done so, however, if we had not •'"j
leved and been assured that tlie orig*l
spelled out effective Limitations on Uj
men in our federal government witfj
claims to power would impair our ofxvsm
independence and subordinate us l° v
international body dominated 1)\ nan ^'j
anti-American concepts of government:l
(Continued on page 52)
Facts Forum News, August,