Government by Treaty/A Danger to Our Bill of Rights

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3053280Government by Treaty — A Danger to Our Bill of RightsWilliam H. Fitzpatrick

Are opponents of these treaties alarmists, as is claimed by those pressing the Senate to ratify them, or are they presenting valid arguments?

Those opposed to the Covenant on Human Rights include the American Bar Association, the American Newspaper Publishers' Association and Sigma Delta Chi, national professional journalism fraternity.

Opponents also include jurists, both Federal and State; a growing number of newspapers, university presidents and law school deans and Members of the United States Senate.

These organizations and people, along with this newspaper which as long ago as March 1949 pointed to the dangers in the Declaration of Human Rights, believe the Covenant on Human Rights unacceptable to the American form of government as we know it.

But is there any judicial basis for their fears?

What has been the attitude of the United States Supreme Court in the matter of treaties?

Let's look at the record.

The Supreme Court has never expressly declared any treaty ratified by the Senate invalid.

The Supreme Court has upheld a law enacted to place teeth in a treaty after it had declared the same law unconstitutional before the treaty was ratified.

This instance of the Supreme Court ruling that the treaty-making power could be used successfully where the Constitution forbade the Congress to act is pointed to by Frank E. Holman of Seattle, a former president of the American Bar Association, in an article in the September issue of the ABA Journal, entitled: "Treaty Law-Making: A Blank Check for Writing a New Constitution."

Here's how it came about: In 1913, Congress enacted a Federal Migratory Bird Act. After its approval by the President, its constitutionality was questioned on the grounds that it invaded the reserved powers of the States, and the statute was declared unconstitutional in 1914 by the Supreme Court in United States v. Shauver. The Court held:

"That the National Constitution is an enabling instrument, and therefore Congress possesses only such powers as are expressly or by necessary implications granted by that instrument, is not questioned. Unless, therefore, there is some provision in the National Constitution granting to Congress either expressly or by necessary implication the power to legislate on this subject, the act cannot be sustained."

Supporters of the regulations governing the taking of migratory birds then sought the treaty route. The President concluded a treaty with Great Britain and the Senate ratified it.

A second Migratory Bird Act was then enacted. It was practically identical with the first, and it was attacked as unconstitutional also.

This time the Supreme Court, in Missouri v. Holland, upheld the law as valid since it was implementation of a valid treaty.

"This decision," Mr. Holman writes, "in effect, and really for the first time, opened the way for amending the Constitution of the United States by and through a treaty, because it proclaims that an otherwise unconstitutional law may become constitutional when, as, and if the President negotiates a treaty on the subject and obtains approval of the Senate."

This is nothing more nor less than government by treaty.

We can lose such rights as freedom of worship, freedom of speech, freedom of peaceful assembly if our Senate ratifies as a treaty the covenant on human rights.