Spencer Heath Archive

Item 2366

Letter from Heath’s grandson, Spencer MacCallum, as a senior at Princeton, enclosing copy of his Bricker Amendment article together with copy of a letter from Heath to each of the 29 Maryland State senators, General Assembly of the State of Maryland, State House, Annapolis, Maryland

March 10, 1955

 

Hi Popdaddy,                        March 12, 1955

 

Hope you’re having a good trip. Your letter to the “Tribune” was published on Thursday, March 9. I’ll order a batch and send half a dozen or so down to you.

     Enclosed is a carbon of your letters to the Maryland Legislators (twenty-nine of them: all the senators). They were written on an IBM machine and were certainly about the finest looking letters we have sent out. Enclosed with them went copies of my “Bricker” speech as it has been improved some and mimeographed for the second time. Enclosed also is a copy to you.

     Thesis is taking a lot of time and is very interesting, especially now that I am handling the actual pieces from the Museum collection here and getting ready to photograph them for illustrations.

     Ruth Berryman wrote that she has called together a group which discussed the Bricker Amendment after I sent her material on it, and that it is stirring up lively interest. I called Mrs. Custer here in Princeton, and she has planned an evening get-together with a number of people and her son from Harvard to talk about the Amendment. This will be at her house and sometime in April.

Best of everything with you,

 

                               /s/ Spencer

 

 

Ask Aunt Beatrice how she’s making out with the Bricker Amendment in Winchester, and whether it’s stirring up any interest.

 

_____________________________________

 

Senator Joseph A. Mattingly,

General Assembly of the State of Maryland,

State House, Annapolis, Maryland

March 10, 1955

Dear Sir:

To my own certain knowledge many citizens of our beloved Maryland Free State, following the lead of our own United States Senator Butler, are morally and intellectually alive to the menace of international communism with which our free institutions are now gravely endangered by the irresponsible manufacture of “treaty law.”

     As a citizen of Maryland proud of her traditions and free insti­tutions, I am eager to see her in the forefront of resistance to this modern attempt to re-introduce European tyranny on our American soil. Eight states of our Union have already taken official cognizance of the danger and, by their legislatures, passed resolutions urging the Federal Congress to pass a Constitutional amendment such as the “Bricker” Amendment for protection against the imposition of inter­national “treaty law” for the governing of our purely internal and domestic affairs.

     The purpose of this letter is to urge you personally to introduce such a resolution into the Maryland Legislature or, if one is already pending to devote your best efforts towards its quick adoption.

     Appreciating your public services to date and trusting the free citizens of Maryland will be able to extend you further gratitude, I am

Sincerely yours,

 

                            /s/ Spencer Heath

 

Enclosure: “Bricker Amendment: Most Critical Issue Since

            the Adoption of the Constitution.”

 

_________________________

 

 

/A speech given before a public speaking class at Princeton University by Spencer MacCallum, a senior who together with Heath actively promoted passage of the ill-fated Bricker Amendment

December 10, 1954/

 

THE BRICKER AMENDMENT:

THE MOST CRITICAL ISSUE

SINCE THE ADOPTION OF THE CONSTITUTION

Do you realize that at this moment the president of the United States and his cabinet are not legally bound in any way by the Consti­tution or the Bill of Rights? That the president right now, if he had the force to back it up, could begin ruling this country according to his own will by dispensing with the Bill of Rights and disbanding Con­gress – and that our Supreme Court has full legal ground for agreeing with him? The Constitution offers no legal restraint on the executive, and the conduct of government is at his discretion. If things got too bad and we had to fight, as the people do in the countries to the south of us, we would have no legal aid on our side. Of course noth­ing this extreme would happen – not right away or all at once. But for the first time in our history we haven’t an effective constitution, We are carrying on in Constitutional forms only by momentum.

     What is the solution to all of this? The solution is a proposed amendment to the Constitution offered to Congress by Senator Bricker in February, 1952. This proposed amendment was drafted by the ablest Constitutional lawyers in the United States, representing the American Bar Association. The American Bar Association has endorsed the Brick­er Amendment three times through its House of Delegates, the last time by a vote of 117 to 33. The Amendment also has the strong endorse­ment of the National Association of Attorneys-General, representing the chiefs of the legal departments of all 48 states. Eight state legislatures and the Bar Associations of 21 states have volunteered resolutions of endorsement for the Bricker Amendment. Other organi­zations supporting the Amendment include the American Medical Association, the Chamber of Commerce of the United States, the Nation­al Grange, the American Farm Bureau Federation and the American Coun­cil of Christian Churches.

     Before I consider the proposed amendment any further, I want to explain very carefully the need of an amendment; so, I shall ask you to listen as carefully and as critically as you can.

     The “Achilles’ Heel” in our Constitution was Article VI, called the “treaty clause,” which reads, “…all treaties…shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.”

     This clause makes treaties self-enacting as internal, domestic law – the “supreme law of the land.” It would seem unnecessary to have such a clause, since treaties deal with foreign powers for spe­cific, external purposes such as protection of citizens abroad and the setting of international boundaries, and we have Congress to legislate for domestic affairs. In fact, the United States is the only major country in the world today whose treaties are self-enacting as inter­nal law. Why, then, do we have such a clause? The answer lies in the dual character of our government, which includes both the federal government and the states’ governments. Originally it was thought im­portant that treaties made by the federal government should be binding on the states’ governments, because otherwise, in the matter of bound­aries, Maine or New Hampshire, for example, or states on the western border, might have refused to recognize national boundaries fixed by the federal government by treaties with other countries.

     But how does this threaten our individual liberties in this coun­try, if our domestic law is enacted by Congress and Congress is limi­ted in its legislation by Constitutional guarantees and the Bill of Rights? It was early recognized that the “treaty clause” in our Con­stitution could enable the executive to make domestic law directly and without such Constitutional limitations by making treaties with pro­visions relating to domestic affairs. Jefferson, Hamilton and others took pains to write that the Intention of Article VI was not to enable the president and the ratifying Senate to enact by “treaty law” what the whole government otherwise is not allowed to do under the Constitution.

     This threat of “treaty law,” unlimited by Constitutional guarantees, has only materialized within the last ten years. In 1945 we joined the united Nations and became a party to its Charter by treaty. Thereby the United Nations Charter became “supreme law of the land.” The California State Supreme Court has already over-ruled two state laws of California on the grounds of the U. N. Charter. When Mr. Truman seized the steel mills, Chief Justice Vinson and two other justices of the Supreme Court argued in their dissenting opinions that Truman was justified and entitled to seize the steel mills, not under our Consti­tution, but under the United Nations Charter, to which we are a party by treaty. A clause in the Charter gives the Executive unlimited authority during a declared “emergency” – one which, of course, he declares.

     As a supra-national organization, the United Nations has no af­fairs of its own but the affairs of its member nations. Nor does it confine itself to trying to keep peace among its member nations – that is, to its member-nations’ foreign affairs – but since 1945 it has drafted resolutions and covenants and prepared over 200 treaties de­signed to affect the economic and social affairs of its member nations. Examples of these treaties, which have been submitted to our Senate for ratification, are the Genocide Convention, the Covenant on Human Rights, and the Convention on Freedom of Information.

     The Genocide Convention would have made it a crime to give “mental harm” to members of any national, ethnic, racial or religious group, for the alleged violation of which an American citizen would be subject to arrest and trial outside the United States by foreign courts.

     Contrary to our own Constitution, which says that Congress shall make no law prohibiting the free exercise of religion or abridging the freedom of speech or of the press, period, the Covenant on Human Rights declared that freedom of religion, speech and press should be subject only to such limitations…as are reasonable and necessary to protect the public safety, order, health, or morals. In other words, it could be left to the discretion of the executive.

     The Convention on Freedom of Information would have enabled our government to censor news in time of peace and “correct” a news dis­patch sent from the United States to another country or from another country to the United States.

     The Truman administration supported all three of these proposed treaties, tried to get them ratified, and continued to support them after they were tabled. Except for the study, and opposition on the floor of Congress, given these treaties by the American Bar Associ­ation, it is perfectly conceivable that one or all of them would have been ratified.

     Now what is the Bricker Amendment which would correct all this? It provides that provisions of treaties shall not become effective as domestic law unless implemented by legislation which would be valid in its own right if there were no treaty. The text of the amendment reads:

1. A provision of a treaty or other international agreement which conflicts with this constitution shall not be of any force or effect.
2. A treaty or other international agreement shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.

     It is the opinion of the American Bar Association that the Bricker Amendment would have passed Congress and gone to the states for ratification in February, 1954, had it not been for the vigorous oppo­sition of the administration.

     What are some of the arguments that have been advanced against the Bricker Amendment?

     First, that it would obstruct the administration’s conduct of foreign policy. But the proposed amendment in no way affects the mak­ing of treaties or the international commitments of treaties. Further­more, the United States is the only major country which has self-enacting treaties as domestic law. I quote from an article in the Canadian Bar Review of November, 1951: “It is a well-established rule of Anglo-Canadian law that the provisions of a treaty, though binding upon the state under international law, do not become part of the law of the land unless they are implemented by legislation.”

     Secondly, that Senate ratification is sufficient safeguard against treaty law. But Senators often have to decide about treaties on the spot and under pressure from the State Department, and not only are treaties sometimes complex, but neither are Senators qualified as Constitutional lawyers. Furthermore, ratification is by 2/3 of the members “present and voting,” and in 1952 one treaty was ratified by only two senators, Senator Sparkman in the chair and Senator Thye in the Senate Chamber. And another, which could conceivably involve us in war in defense of Greece and Turkey, by only six Senators. Finally, treaties can be presented at any time; some day we might wake up and find that the Covenant on Human Rights has been taken from the table and presented late one afternoon, and ratified without previous public announcement.

     Thirdly, Mr. Dulles has said that we can trust in the integrity of the present administration not to misuse the treaty power. But after his speech to this effect, the United States representative in the United Nations formally signed the Genocide Convention.

     Lastly, it is said that unwritten custom in the United States is strong enough to insure us against the dangers of “treaty law.”

     The Senate Judiciary Committee, to which the resolution for a Constitutional amendment was first referred by the Senate, made a study, including nearly three months of public hearings, of the objections raised against the proposed amendment. At the end of its study, the Committee recommended the amendment to the Senate in substantially its present form by a two to one vote. The American Bar Association con­cluded in a study, which has been published and remains unanswered, that the legal arguments raised against the Bricker Amendment are un­founded.

     What is the real nature of the opposition to the Bricker Amendment? We considered the answer a few weeks ago in this class when we read a mimeographed debate on nationalism versus world government. The desire for world government has never died in this country, and the ex­ercise of “treaty law” granted in Article VI of our Constitution is one effective step towards transferring the law-making process of the United States to an international organization, the United Nations. The American Association for the United Nations and the United World Federalists are among the organizations that oppose the Bricker Amendment.

     Do these people really think United States citizens would be se­cure under United Nations rule? Gentlemen, I appeal to you, that whether you are for or against the idea of world government in princi­ple the world government we are specifically heading towards, through the United Nations Organization and the treaty power, is anything but a restrained government, with adequate guarantees for our individual liberties such as are embodied in the Bill of Rights of our Consti­tution.

     Secondly, those who look forward to social and economic “reforms,” through unlimited extension of government regulations in this country, support “treaty law” because of the complete freedom of action it would give to the executive.

     The issue is liberty and our Bill of Rights. Frank Holman, past president of the American Bar Association, who received last year for his work on the Bricker Amendment that Association’s award for the most outstanding service towards its first objective, which is “to uphold and defend the Constitution of the United States,” writes, “‘Treaty Law’ can be more dangerous to American Rights and the Ameri­can form of government than total war.” Gentlemen, the Bricker Amend­ment will come up for debate in Congress in January. We must devote all our effort and determination to seeing it through to a successful conclusion.

     In concluding, I want to paint a picture. I am reminded of the story of the little Dutch boy who found a small leak in the sea-dike and stayed out all night with his finger in the hole to keep it from growing bigger and washing away the dike. In the morning, the people came out and found him and plugged the hole with clay and stone. In the tensions of the world today, more and more leaks are springing in the constitutional bulwarks everywhere defending men’s liberties. Such a leak has sprung in the United States, and a little boy is holding the leak with his finger. That little boy is traditionalism – only force of custom, and the avowed integrity of the present administra­tion. Some people are passing him by, saying, “He’s doing all right; let him keep on holding it.” But I say to you that we must go out and collect clay and stone.

     You can help by writing your Senator, your newspaper, and explain­ing in your town, the issue involved. Gentlemen, we must pass the Bricker Amendment in this Congress!

_____________________________

Basic Bibliography:  Holman, Frank E.:

1. Story of the “Bricker” Amendment (First Phase), The Argus Press, Seattle, Washington.

 

2. “The Erroneous Arguments of the Opponents of a Constitutional Amendment on Treaties and Executive Agreements,” The Argus Press, Seattle, Washington.

 

3. “The Increasing Need for a Constitutional Amendment on Treaties and Executive Agreements (the 1955 ‘Bricker Amendment’),” Feb., 1955. The Argus Press, Seattle, Washington.

Single copies of these booklets may be had on request from Frank E. Holman, Hoge Building, Seattle 4, Washington.

 

 

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