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Facts Forum News, Vol. 4, No. 8, September 1955
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Facts Forum. Facts Forum News, Vol. 4, No. 8, September 1955 - File 019. 1955-09. University of Houston Libraries. University of Houston Digital Library. Web. May 28, 2020. https://digital.lib.uh.edu/collection/1352973/item/489/show/438.

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Facts Forum. (1955-09). Facts Forum News, Vol. 4, No. 8, September 1955 - File 019. Facts Forum News, 1955-1956. University of Houston Libraries. Retrieved from https://digital.lib.uh.edu/collection/1352973/item/489/show/438

Disclaimer: This is a general citation for reference purposes. Please consult the most recent edition of your style manual for the proper formatting of the type of source you are citing. If the date given in the citation does not match the date on the digital item, use the more accurate date below the digital item.

Facts Forum, Facts Forum News, Vol. 4, No. 8, September 1955 - File 019, 1955-09, Facts Forum News, 1955-1956, University of Houston Libraries, accessed May 28, 2020, https://digital.lib.uh.edu/collection/1352973/item/489/show/438.

Disclaimer: This is a general citation for reference purposes. Please consult the most recent edition of your style manual for the proper formatting of the type of source you are citing. If the date given in the citation does not match the date on the digital item, use the more accurate date below the digital item.

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Title Facts Forum News, Vol. 4, No. 8, September 1955
Alternate Title Facts Forum News, Vol. IV, No. 8, September 1955
Series Title Facts Forum News
Creator
  • Facts Forum
Publisher Facts Forum
Date September 1955
Language eng
Subject
  • Anti-communist movements
  • Conservatism
  • Politics and government
  • Hunt, H. L.
Place
  • Dallas, Texas
Genre
  • journals (periodicals)
Type
  • Text
Identifier AP2.F146 v. 4 1955; OCLC: 1352973
Collection
  • University of Houston Libraries
  • Facts Forum News
Rights No Copyright - United States: This item is in the public domain in the United States and may be used freely in the United States. The item may not be in the public domain under the copyright laws of other countries.
Item Description
Title File 019
Transcript anel hence within Congress' power undei the "necessary and proper" clause which authorizes Congress: ''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- ment. 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 relations. 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 innocuous anomaly. 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? KNOWLAND AMENDMENT CONSIDERED "DANGEROUS" In this connection it is interesting to recall some of the things that were said last August [1953] 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 Constitution. 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 Page 17
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