Bricker Amendment
The Bricker Amendment was a proposal to amend the United States Constitution in the 1950s to limit the federal government's treaty-making powers.
Sponsored by Senator John W. Bricker, a conservative Ohio Republican, the amendment declared that no treaty could be made by the United States that conflicted with the U.S. Constitution, was self-executing without domestic legislation being passed by Congress, or which granted Congress legislative powers beyond that enumerated in the Constitution. It further limited the President's power to enter into executive agreements with foreign powers.
Historical Background
Following the Second World War, various treaties were proposed under the aegis of the United Nations (e.g. the Genocide Convention, the Universal Declaration of Human Rights). 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. These fears arose largely from two Supreme Court rulings, Missouri v. Holland, 252 U.S. 416 (1920), and United States v. Pink, 315 U.S. 203 (1942).
The first case arose from efforts by Congress to regulate migratory birds. They had passed a law to that effect, but the courts had declared the law unconstitutional as a violation of the Tenth Amendment. The United States 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. The state of Missouri sued, but this time the law was upheld. The Supreme Court said 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)
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 seized the New York office to satisfy 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. This agreement was never 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, one not dependent on any language of 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.
Congress Considers the Amendment
These precedents, which conservatives feared would be abused (the Human Rights Declaration having sweeping language about health care, employment, vacations, etc.), led to Senator Bricker's proposal in 1951 in the 82nd Congress. He had sixty-four co-sponsors in the Senate, including California's Richard M. Nixon, just shy of the two-thirds necessary, covering politicians of all stripes. It was endorsed by the then- conservative American Bar Association and several of its then-current and former leaders. Liberal groups such as the American Civil Liberties Union, the American Association of University Women, Americans for Democratic Action, and the American Jewish Congress opposed it.
When Bricker re-introduced the measure in the 83rd Congress, which was in the hands of the Republicans after the 1952 elections, passage looked likely. Co-sponsor Richard Nixon was now vice-president. But to Bricker's shock, the man swept to office as President, Dwight D. Eisenhower, was against the idea because he feared it would limit his powers in the international arena--but that was exactly what Bricker wanted to do. Eisenhower's behind-the-scenes lobbying of administration supporters to join with liberal Democrats against the amendment meant its defeat by only one vote when finally voted on in 1954. Bricker reintroduced the measure every Congress until he was voted out of the Senate in 1958, after which it never again came up for a vote.
Subsequent Court Rulings
Subsequent court cases obviated some of Bricker's concerns. In Seerzy v. United States, 127 F. Supp. 601 (Court of Claims, 1955), an American citizen whose home in Austria was seized by the U.S. Army after World War II to use as an officer's club, was damaged by the soldiers. 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.
A much more dramatic affirmation of the Bill of Rights came in Reid v. Covert, 354 U.S. 1 (1957). Claire Covert was the wife of a sergeant in the United States Air Force and was with him at his posting in England. When she killed him, 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. The Uniform Code of Military Justice stated this explictly. 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)
Though conservatives still express occasional concern about the United Nations or executive agreements, no serious effort has been made since the defeat of the Bricker Amendment to similiarly limit the President's treaty-making powers.
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 exective and other agreeements 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."
References
- Richard O. Davies. Defender of the Old Guard: John Bricker and American Politics. Columbus: The Ohio State U.P., 1993.
- Frank Ezekiel Holman. The Story of the "Bricker Amendment." New York: Fund for Constitutional Government, 1954.
- Duane Tananbaum. The Bricker Amendment Controversy: A Test of Eisenhower's Political Leadership. Ithaca, N.Y.: Cornell U.P., 1988.