Bricker Amendment

Senator John W. Bricker, the sponsor of the proposed constitutional amendment.

The Bricker Amendment, a proposed constitutional amendment considered by the United States Congress in the 1950s, would have limited the power granted by Article Two, clause two of the United States Constitution allowing the President of the United States to make treaties with foreign states. Sponsored by Senator John W. Bricker, a conservative Ohio Republican, the proposal declared that no treaty could be made by the United States that either conflicted with the U.S. Constitution, was self-executing without the passage of enabling legislation through Congress, or that granted Congress legislative powers beyond those specified in the Constitution, and limited the president's power to enter into executive agreements with foreign powers.

The resolution was inspired in part by fears that the Constitution's "supremacy clause," Article VI paragraph 2, stating that "All Treaties...shall be the supreme Law of the Land...any Thing in the Constitution to the contrary notwithstanding," might allow a President to restrict the rights and privileges of the American people by entering into international agreements that would supersede American constitutional law and the legislative and judicial branches of government — fears that had been heightened by earlier Supreme Court rulings in Missouri v. Holland, 252 U.S. 416 (1920), and United States v. Pink, 315 U.S. 203 (1942), which upheld Federal actions in keeping with two treaties against the rights of two State governments, and by the implications of international treaties promulgated after World War II under the aegis of the United Nations, specifically the Genocide Convention and the Universal Declaration of Human Rights.

Bricker's proposal attracted considerable bipartisan support from the major political parties and across the ideological spectrum, and was a focal point of intra-party conflict between the Eisenhower Administration and the Old Right faction of conservative Republican senators. While popular, the Bricker Amendment lacked the two-thirds support needed in the Senate to set in motion the constitutional amendment process. Bricker introduced it in every legislative session between 1951 and his electoral loss in 1958, but it never became law. Subsequent legal precedents, notably, Seerzy v. United States, 127 F. Supp. 601 (Court of Claims, 1955) and Reid v. Covert, 354 U.S. 1 (1957), ultimately established some of the limitations sought by the Bricker Amendment.

Historical background

Following the Second World War, various treaties were proposed under the aegis of the United Nations, in the spirit of collective security and internationalism that followed the global conflict of the preceding years. In particular, the Genocide Convention and the Universal Declaration of Human Rights, which contained sweeping language about health care, employment, vacations, etc. were considered problematic both by isolationists and limited government advocates who were resistant to participate in what they saw as foreign oversight of the U.S. Government and the rights of the American people or their State governments.

Conservatives were worried that these treaties could be used to expand the power of the Federal government at the expense of the people and the states. Years later, in 1976 Senator Bricker referred to the "one world" movement advocated by Wendell Willkie and others as attempting to use treaties to undermine American liberties. Often quoted by conservatives was the statement of John P. Humphrey, the first director of the United Nations Commission on Human Rights:

What the United Nations is trying to do is revolutionary in character. Human rights are largely a matter of [the] relationship between the State and individuals, and therefore a matter which has been traditionally regarded as being within the domestic jurisdiction of states. What is now being proposed is, in effect, the creation of some supernational supervision of this relationship.

In a modern essay about the Bricker Admendment, libertarian and anti-war advocate Justin Raimondo cited the writings of conservative Frank Chodorov, who wrote in the 1950s that

"A nation is threatened by invasion, not by a foreign army, but by its own legal entanglements. Not soldiers, but theoreticians and visionaries attack its independence and aim to bring its people under the rule of an agglomeration of foreign governments. This is something new in history. There have been occasions when a weak nation sought security by placing itself under the yoke of a strong one. But, here we have the richest nation in the world, and apparently the strongest, flirting with the liquidation of its independence. Nothing like that has ever happened before."^[1]

Furthermore, Bricker and his allies were fearful that Americans could be subject to foreign control because of two Supreme Court rulings on treaties, Missouri v. Holland, 252 U.S. 416 (1920) and United States v. Pink, 315 U.S. 203 (1942), that appeared to sacrifice American sovereignty.

Missouri v. Holland

The first case arose from efforts by Congress to protect migratory birds. Congress had passed a law to that effect, prohibiting killing or capturing the birds; however, the courts had found the law unconstitutional, as a violation of the Tenth Amendment to the United States Constitution, which reserves for the people any rights not specifically entrusted to the Federal government under the Constitution. In a continued effort to secure the safety of the birds in question, the Federal government subsequently entered into a treaty with the United Kingdom, which acted on behalf of Canada concerning the birds. Congress then passed a law, the Migratory Bird Treaty Act of 1918, to implement the treaty; however, the state of Missouri sued, charging its rights as a state were being encroached on by the Federal government. This time the law was upheld. In a majority opinion written by Justice Oliver Wendell Holmes, the Supreme Court held that treaties could trump the Constitution's limitations on federal power because the Constitution declares "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land" (Art. VI, cl. 2).

United States v. Pink

The Pink case concerned a Russian insurance company that had established an office in the State of New York. Following the Russian Revolution, the new Soviet government seized all insurers. The New York Superintendent of Insurance had previously seized the New York office to satisfy financial claims against it. Once those were paid, there remained a balance, which New York then opened to foreign claims. When President Franklin Delano Roosevelt recognized the Soviet government in 1933, he exchanged letters with their foreign minister, Maxim Litvinov, to settle claims between the two countries, in an agreement that was neither sent to the Senate nor ratified by it. The United States sued New York to claim the balance held by the Insurance Superintendent, and lost in lower courts. However, the Supreme Court held New York was interfering with the president's exclusive power over foreign affairs, independent of any language in the Constitution—a doctrine it enunciated in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)—and ordered New York to pay the money to the United States.

Text of the proposed amendment

Because Senator Bricker introduced his amendment in several Congresses, there are differing versions of the proposal. This is the text as introduced in the 83rd Congress in 1953 (S.J. Res. 1). The 83rd was the only one to ever vote on the proposal.

Sect. 1. A provision of a treaty which conflicts with this constitution shall not be of any force or effect.

Sect. 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty.

Sect. 3. Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.

Sect. 4. The Congress shall have the power to enforce this article by appropriate legislation.

Eisenhower Administration

Senator Bricker's proposal in 1951 in the 82nd Congress had sixty-four co-sponsors in the Senate, including including politicians from both parties as well as liberals and conservatives, and California's powerful Senator Richard M. Nixon. Nonetheless, under American constitutional law, a two-thirds vote in the Senate would be required to approve a constitutional amendment. Despite broad support, the Bricker Amendment temporarily stalled in committee without coming before the Senate for a vote, and would not be considered until the subsequent legislative session.[2]

The proposal was endorsed by the then-conservative American Bar Association and several of its current and former leaders.

It was opposed by groups such as the American Civil Liberties Union, the American Association of University Women, Americans for Democratic Action, and the American Jewish Congress.

When Bricker reintroduced the measure in the 83rd Congress, passage looked likely. Co-sponsor Richard Nixon was now Vice President of the United States, and Republicans controlled the Senate by a slim margin after the Senate election of 1952.

Views of the President

To Bricker's shock, the man swept to office as president, Dwight D. Eisenhower, was against the idea because he feared it would limit the powers of the President in the international arena—exactly what Bricker wanted to do. In a January, 1954 letter to his brother, President Eisenhower wrote:

"The argument presented by the supporters and opponents of the so-called Bricker Amendment do not affect me personally. Before such an Amendment could become law, the responsibilities I carry will be on someone else's shoulders. But I will never, under any circumstances, agree to the enactment of an Amendment which, for the first time in the life of our Constitution, attempts to attack the very basis of our governmental system--the proper division of governmental functions among the Legislative, Judicial, and Executive Branches. I am not going to be known in history as the Chief Executive who agreed to the emasculation of the Constitutional method for discharging one of the most serious responsibilities (treaty making) devolving upon the President, the Congress, and indeed the Courts."^[3]

In personal correspondance to Erwin Nathaniel Griswold, the Dean of Harvard Law School, who had declined an invitation from Eisenhower's Assistant Attorney General of the United States, to meet with supporters of the Amendment on behalf of the Administration, President Eisenhower wrote in 1954:

"From a number of individuals, I have received urgent requests to support the Bricker Amendment so as "to protect our Constitution from being destroyed by treaties." In order to convince these people that the Administration is sincere in its purpose of preserving the Constitution against any possibility of damage through the treaty-making power, I have, up to now, believed it would be best to offer, with Administration blessing, a substitute which would be scarcely more than Section I of the proposed amendment. I agree that the proponents of the Bricker Amendment will in no wise be satisfied by this kind of substitute; but I can think of no more positive and direct way of stilling the fears of any person in the United States who has been led to believe that the treaty-making process can destroy our Constitution. In any event, I am prepared to throw every available resource into the struggle to make certain that this crippling amendment does not become part of our basic law."^[4]

Republicans sympathetic to the Administration

In a 1980 interview of Pat A. Holt, Chief of Staff of the Senate Foreign Relations committee, he recalled the influence of Republican Senator Alexander Wiley in "stiffening the spine" of the Eisenhower Administration in their resistance to the Bricker Amendment: "You know, I think if it had not been for Wiley, Eisenhower would have caved in on this thing with Bricker...I think one of Wiley's greatest accomplishments was something which did not become law, namely the defeat of the Bricker Amendment."[5]

Democratic Party view

For their own part, the Democrats, thrust into minority status after the 1952 election, rallied around their minority leader, the forty-four year old first-term Senator from Texas, Lyndon Johnson. In a review of Robert Caro's biography of Johnson, writer Christopher Caldwell noted how Johnson utilized the split between the Republican administration and the conservative coalition dominating the Senate to promote his Party's agenda:

"It was Johnson who as minority leader came up, single-handedly, with the plan to win back a Democratic majority in 1954—by steering the Senate toward issues that would highlight Republican isolationists' differences with Eisenhower. Thus, he backed the Marshall Plan, supported Eisenhower on his nomination of Chip Bohlen as ambassador to Russia, and came up with an ingeniously unworkable "compromise" on the Bricker constitutional amendment that would have eliminated Eisenhower's presidential treaty-making power.^[6]

The Democrats in fact did regain majority control of the Senate in the Senate election of 1954, as well as the House of Representatives, and their slim majority enabled Johnson to dictate greater control of the legislative process and agenda, determining which measures could be brought to a floor vote.

Lobbying efforts and alternative proposal

Eisenhower worked through multiple channels, lobbying Administration supporters to join with liberal Democrats against the amendment. Vice President Nixon was given the role of Administration liason to the Senate, in charge of defeating the Amendment without fatally fracturing the Republican Party's legislative agenda.^[7] Edwin S. Corwin, Chairman Emeritus of Princeton University's Department of Politics, led a national committee in opposition to the Amendment.[8]

Study Committee and George Amendment

Thus, a "study committee" suggested by Eisenhower and influenced by Nixon and Johnson, produced the George Amendment, a modified proposal sponsored by Democrat Walter George. This proposal received a 60-31 vote in the Senate in February 1954, one vote short of the two-thirds it required.^[9]

Bricker reintroduced the measure in every subsequent session of Congress until he was voted out of the Senate in 1958, but it never again came up for a vote and was never adopted.

Subsequent court rulings

Subsequent court cases obviated some of Bricker's concerns.

Seerzy v. United States

In Seerzy v. United States, 127 F. Supp. 601 (Court of Claims, 1955), an American citizen sued for damages to her home in Austria, which was seized by the U.S. Army after World War II for use as an officer's club. The Army refused her claim for damages, citing an executive agreement the U.S. had signed with the Austrian government. The Court of Claims ruled that the president could not abrogate the takings clause of the Fifth Amendment by such an agreement.

Reid v. Covert

A much more dramatic affirmation of the Bill of Rights came in Reid v. Covert, 354 U.S. 1 (1957). Claire Covert, the wife of a sergeant in the United States Air Force, murdered him while with him at his posting in England. She was tried by a military court martial and sentenced to life imprisonment. The military appeals system affirmed the conviction, but a habeas corpus petition was filed in the civilian courts questioning the ability of the military to try her. Under the Status of Forces Agreement signed by Britain and the United States, the U.S. reserved to itself the right to try all military personnel and their dependents, and the Uniform Code of Military Justice stated this explicitly. Initially, the Supreme Court affirmed Mrs. Covert's conviction—Reid v. Covert, 351 U.S. 487 (1956)—but on rehearing reversed, finding that the President could not by executive agreement or treaty abrogate the Bill of Rights.

The Court wrote, "We reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution" (354 U.S. 1 at 5); and of the supremacy clause, "There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result" (354 U.S. 1 at 16).

Modern legacy

Though conservatives still express occasional concern about the United Nations or executive agreements, subsequent efforts to limit the President's treaty-making powers have not attracted a similar degree of support.

International Conventions

The United States became a signatory to the Genocide convention in 1988, though only with the proviso that it was immune from prosecution for genocide without its consent.

The United States Senate ratified the International Covenant on Civil and Political Rights (ICCPR), a derivation of the Universal Declaration of Human Rights, in 1992, with a number of reservations, understandings, and declarations. In particular, the Senate declared that "the provisions of Article 1 through 26 of the Covenant are not self-executing." 138 Cong. Rec. S4781-84 (1992) (emphasis added). The Senate stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts." S. Exec. Rep., No. 102-23, at 15 (1992). Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action is created by ratification. Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also see Buell v. Mitchell 274 F.3d 337 (6th Cir., 2001) (discussing ICCPR's relationship to death penalty cases, citing to other ICCPR cases). Thus the guarantees of the ICCPR are largely symbolic or aspirational within the United States.

Bricker revival, U.S. Criticism of the U.N.

In 1997, United States Representative Helen Chenoweth (R–Idaho) introduced H. J. Res 83, essentially a revival of the famous Bricker Amendment.^[10]

A 2002 essay, "Protecting National Sovereignty in an Era of International Meddling," written by Representative Bob Barr for the Harvard Law School's Journal of Legislation, discusses his view of the modern international entanglements of the U.S. Government and refers to the Bricker Amendment as a remedy to the Supreme Court's "mistake" in the Holland case.^[11]

Notes

^ "Raimondo, Justin. "The Bricker Amendment."". 2006-1-1. {{cite web}}: Check date values in: |date= (help)
^ "Eisenhower's letter to Edgar Newton Eisenhower, January 1954". 2006-1-3. {{cite web}}: Check date values in: |date= (help)
^ "Eisenhower's letter to Erwin Nathaniel Griswold, January 1954". 2005-1-3. {{cite web}}: Check date values in: |date= (help)
^ Hatfield, Mark O. "Richard Milhous Nixon." Vice Presidents of the United States, 1798-1993. pp. 433-447. Washington: U.S. Government Printing Office, 1997.
^ "PDF file of Chenoweth's bill on the GPO's site" (PDF). 2006-1-3. {{cite web}}: Check date values in: |date= (help)
^ Caldwell, Christopher. "Master of the Senate." Review of Robert Caro's Master of the Senate at Slate. ""Master of the Senate"". 2006-1-3. {{cite web}}: Check date values in: |date= (help)
^ "Barr, Bob. "Protecting National Sovereignty in an Era of International Meddling: An Increasingly Difficult Task." Harvard Journal on Legislation, 39(2002): 299-324" (PDF). 2006-1-3. {{cite web}}: Check date values in: |date= (help)

References

John W. Bricker. "John W. Bricker Reflects Upon the Fight for the Bricker Amendment". Edited by Marvin R. Zahniser. Ohio History. Vol. 87, no. 4. Autumn 1978. 322-333. [12]
Richard O. Davies. Defender of the Old Guard: John Bricker and American Politics. Columbus, Ohio: The Ohio State University Press, 1993.
Frank Ezekiel Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954.
Duane Tananbaum. The Bricker Amendment Controversy: A Test of Eisenhower's Political Leadership. Ithaca, New York: Cornell University Press, 1988.

External links