anel hence within Congress' power undei
the "necessary and proper" clause which
''To make all laws which -liall lie necessary and proper for carrying into execution the foregoing powers (the enumerated
powers of Congress), and all other powers
vested by this Constitution in the government of the United States or in any de-
partment or officer thereof."
No question of the statute overriding
eer conflicting with the Tenth Amendment
was involved: The Tenth Amendment by
its express terms reserves to the stales or
the people only those powers not delegated to the United States or prohibited
to the states. The treaty power and thc
necessary and proper power were hoth
expressly granted to the United States and
the treaty power was expressly prohibited
to the states hy the framers of the Constitution and by the states themselves in
ratifying the- Constitution. Hence, these
two powers eire' met euiiinia the- powers
reserved te. the- states ley the- Tenth \monel-
With respect to the real as opposed to
the fancied constitutional limits on the
treaty power, Justice Holme's found that
the Migratory Bird treaty did not contravene any constitutional prohibitions and
that the treaty dealt with a matter which
can he protected only hy national action
in concert with that of another power.
DANGER OF MISINTERPRETATION
If in some future case the Supreme
Court were to l.e1 e-einvinced tlnit toeleey's
amenders viewed Missouri against Holland
as a case in which a treaty anil treaty-
implementing congressional legislation
were' eeiiee. effect despite the fact that they
conflicted with the Tenth Amendment, the
proposed provision theit ei treaty conflicting with the Constitution shall not he of
eenv force might very well lee taken as
intended to reverse Missouri against Holland and to establish the Tenth Amendment as a limitation on the treaty power
and Congress' treaty-implementing power,
ff this came to pass. Congress' power to
enforce treaties would then he restricted
to the legislative powers of Congress in
the absence of a treaty.
This would mean that in areas not
falling within these powers of Congress it
would he necessary for the state legislatures to implement a treaty. This is exactly the effect that the so-called "which"
clause of Section 2 of the Bricker Amendment avowedly seeks and the compromises
seek to avoid. Hence, any compromise
amendment purposely omitting the
"which" clause, yet declaring a treaty conflicting with the Constitution null and
void, should provide that it is not intended
to limit the treaty power or Congress'
power to implement a treaty under the
necessary and proper clause, to Congress'
powers in the absence of a treaty, or, at
the very minimum, carry with it a clear
statement to this effect hy its sponsors on
tin- floor of the Senate.
The easiest and surest way of avoiding
subsequent judicial misinterpretation of an
amendment merely designed to declare
and restate- existing law is to refrain from
making any amendment at all. Otherwise
there- la always the eleuegcr that a courl
will strive to give some' other leie'eiiiine:
and effect to the amendment.
ARTHUR H. PRAN.
New York, February 2, 1954.
I see nothing revolutionary in the'
doctrine which has been described.
A really revolutionary decision would
have gone in the opposite direction and
undermined the treaty power in disre
gard of precedent dating back to 1796,
when lhe treaty ending the War of
Independence was enforced against contrary slate legislation.
The 1796 decision was dictated by
the language of the supremacy clause
of the Constitution, which was framed
expressly to permit treaties made prior
lo 1788, prior lo the effectuation of the
Constitution, to override state law-.
This effect could not have been given
to treaties negotiated before 1788 if the
supremacy clause had provided that
treaties, like ordinary federal legislation,
must be "in pursuance" of the Constitution. There was no Constitution before
1788. Thus the supremacy clause refers
simply to treaties "made or which shall
be made, under the authority of the
I nited States." Of course all treaties
entered into subsequent to the adoption
of the Constitution were made pursuant
lo the Constitution, and subject to it.
In view of this historical background,
and the substantial practical reason for
the precise wording of the supremacy
clause. I can see no basis for any inference that the Constilulion would permil
its safeguards to lie nullified by means
of a Ireaty.
We have tbe word of James Madison,
lhe father of the Constitution himself,
lhat treaties are subordinate to the Constitution. At the Virginia Convention be
met Patrick Henry's argument that
treaties would be, as the supreme law,
paramount to the Constitution, by saying that "the supremacy clause made
treaties paramount only to lhe laws and
constitutions of the states."
We also have the word of an overwhelming majority of the leading modern experts in the fields of constitutional
law, American history, and international
OPPOSED BY LAW-SCHOOL DEANS
Last summer tbe distinguished senior
senator from Wisconsin [Mr. Wiley]
solicited the views of law-school deans
and professors of constitutional law in
all parts of the country on the need for
a constitutional amendment on the treaty
power, and the almost unanimous reply-
was—and I think I am quoting the dis-
linguished senator from Wisconsin accurately- -that no such amendment was
necessary even to declare the supremacy
of the Constitution over treaties.
Amending our Constitution is a serious business. On only thirteen occasions
in our entire history has this important
step been taken. We should, therefore.
lu.-ileite to propose a constitutional
amendment which appears to be merely
a restatement of the existing law. President Eisenhower told a press conference
I.i-i spring that it would seem anomalous io amend the Constitution simply to
show thai it is going to be the same as
it always has been. But I wonder whether
such .in amendment might turn out to
involve something more serious than an
A basic principle which lhe courts
apply in interpreting a statute is that
tbe statute in question is presumed to
have a substantial purpose; in other
words, that the legislators did not enact
it just for exercise.
This presumption is much stronger in
the case of a constitutional amendmenl.
which requires a two-thirds vote in each
house of the Congress and ratification
l.v throe-fourths of all the slate legislatures.
Can it be taken for granted that a
future Supreme Court would hold thai
lhe long, complicated task of amending
lhe Constitution had been undertaken bv
Congress merely to repeat what was already the law; or might not the Court
bo ingenious in finding that in some way
or other—unbeknownst to those of us
who are now deliberating upon it—the
proposed amendment did, in fact, change
lhe present meaning of the Constitution?
In this connection it is interesting to
recall some of the things that were said
last August  by the senior senator from Ohio in commenting upon a
substitute measure proposed by the distinguished senior senator from California. This measure would have amended
the Constitution along substantially the
same lines as those which I have been
discussing thus far. The senator from
Ohio said of this substitute measure:
The court must give it some meaning.
And he also said:
It would be a vain and utterly ridiculous thing to repeat in a constitutional
amendment that which is already in the
Senator Bricker further referred to
the Knowland proposal as "a probablv
dangerous amendment to our fundamental law."
And he also characterized it as "preposterous."
In his view it was a proposal which
"might shift vital foreign-affairs responsibilities to the Supreme Court."
He felt that it might cause the Supreme Court to abandon its rule against
passing upon political questions.
Other persons commenting upon the
same proposal have raised the possibilitv
that the Supreme Court might find lhat
the treaty power had actually been cut
back—perhaps to the extent of outlawing
the principle of the Migratory Bird decision and the 1796 precedent on which
it was based. Thus we might find lhal
lhe highly unfortunate "which" clause
of Senate Joint Resolution 1 had. l.v a
sort of reverse English, slipped into our
Constitution after all.
Vi e would do well lo bear in mind
lhal many decades might elapse before
the Supreme Court would be called upon
FACTS FORUM NEWS, September, 1955