Monthly Archives: April 2019

Globalism And Sovereignty: A Short History Of The Bricker Amendment

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Supranational Commissions Seek Veto Power Over American Policy.

Monday, April 01, 1996
fee.org
By Thomas E. Woods Jr.

Mr. Woods, an Intercollegiate Studies Institute Richard M. Weaver Fellow, is a doctoral candidate in history at Columbia University.

Historically, conservatives and libertarians have always maintained a suspicion of supranational governing bodies. Their central fear has been that foreign bodies may serve to compromise self-government and American liberties in favor of egalitarian and universalist political goals.

Closely related to this fear were misgivings about the steady accretion of power in our own executive branch. American conservatives maintained that socialist projects dreamed up by global bureaucrats would be held at bay if Congress, the branch of government closest and most accountable to the people, made a determined stand for American independence. If too much control over the direction of foreign affairs were concentrated in the executive, questions of such grave import might be placed beyond the reach of popular opinion.

The coupling of executive power with an internationalist political agenda became a force on the American political scene soon after the ratification of the United Nations treaty. It quickly became clear that President Harry Truman favored a strong executive. His 1952 seizure of U.S. steel mills and his actions in Korea seemed to justify conservative apprehensions.[1] In the latter case, Truman argued repeatedly that the United Nations Charter was a treaty he had the duty to execute, and whose authority obviated the need to consult Congress for a declaration of war. If Truman could invoke the Charter to justify a measure as serious as the deployment of American troops abroad, many conservatives wondered, might he not appeal to the same authority to implement wide-ranging initiatives of social reconstruction?

Acutely aware of such concerns, the American Bar Association (ABA) and its president, Frank S. Holman, laid the intellectual groundwork in the late 1940s and 1950s for what would become the Bricker Amendment. Holman, an early opponent of the New Deal and an outspoken champion of states’ rights, viewed supranational institutions with distrust. In 1948, he ordered the ABA’s Committee on Peace and Law through the United Nations to assemble reports on several UN-proposed treaties—the Statute of the World Court, the Genocide Convention, the Freedom of Information Covenant, the News Gathering Convention, and the Covenant of Human Rights—with respect to their potential impact on American sovereignty. Alarmed by the results, the ABA in 1952 endorsed the idea of a constitutional amendment that would safeguard the Constitution from erosion by international treaty.[2]

Missouri v. Holland

Many of the concerns shared by the ABA and other proponents of what would become the Bricker Amendment can be traced to the obscure and seemingly innocuous case of Missouri v. Holland in 1920. Its rulings on state regulation of the treatment of certain species of migratory birds were ripe with significance for the future conduct of American foreign relations.

The dispute dated back to 1913, when Congress passed a measure establishing federal regulations over the killing, capturing, or selling of such birds. At the time, federal courts ruled it a usurpation of rights reserved to the states under the Tenth Amendment. But when President Woodrow Wilson codified these regulations in a 1916 treaty with Great Britain, the Supreme Court upheld them by citing the so-called supremacy clause of the Constitution. The Court concluded that if “the treaty is valid there can be no dispute about the validity of the statute . . . as a necessary and proper means to execute the power of the Government.”[3]

The decision was a fateful one, for it would be cited in several subsequent cases that served to expand the power of the central government.[4]Decades later, in the wake of U.S. ratification of the United Nations Charter, the precedent set in Missouri and subsequently elaborated in United States v. Pink (1942) took on a profound significance. The Charter had been ratified with the explicit assurance that it authorized no UN interference in the domestic concerns of the United States, or of any other member nation. There can be little doubt that the United States would never have lent its support had the document not contained such a stipulation. These Court decisions, however, raised difficult questions regarding that portion of American sovereignty that UN membership may have forced the United States to relinquish.

It would not be long before these precedents would be invoked by American social reformers to justify progressive legislation or the abolition of state and local infringements on what the UN considered “human rights.” Only a year after the ratification of the Charter the left-wing National Lawyers Guild, citing Missouri v. Holland, concluded that lynching fell under federal jurisdiction and hence anti-lynching legislation within federal authority, on the grounds that such legislation would serve to satisfy America’s human-rights obligations under the United Nations Charter.[5] Nor were such arguments limited to left-wing groups. In 1948, four Supreme Court justices offering concurring opinions in the case of Oyama v. California cited the UN Charter as a rationale for the abolition of a California law that restricted land ownership among aliens ineligible for citizenship, since in practice it applied only to Japanese aliens. Two years later, the companion case of Sei Fujii v. California yielded a similar outcome.[6]

A conservative backlash against such developments was not long in coming. The constitutional ruminations of the National Lawyers Guild and some of the legal reasoning employed in Oyama and Fujii may well have been isolated cases, but they were rich enough with implications for state autonomy to alarm right-wing congressmen who were notoriously protective of local liberties.

Senator Bricker’s Efforts to Safeguard American Sovereignty

One such legislator was the fiery Senator John Bricker of Ohio. For several months, Bricker had closely followed the discussions in the American Bar Association Journal regarding the ambiguity of the supremacy clause of the Constitution.[7] If any senator could have been expected to act on such concerns, it was John Bricker. In 1951, he had introduced Senate Resolution 177 in opposition to the proposed International Covenant on Human Rights, which the UN had unsuccessfully attempted to draft since 1949. The attempt to foist a legally binding covenant on the nations of the world, Bricker maintained, demonstrated beyond any doubt that the United Nations was attempting to establish itself as a world government. The Covenant, he insisted, “would be more appropriately entitled as a Covenant on Human Slavery or subservience to government. . . . [T]hose who drafted the Covenant on Human Rights repudiated the underlying theory of the Bill of Rights—freedom to be let alone.”[8] Significantly, Bricker cited the Fujii case as evidence of the ominous potential of UN authority over American domestic policy.[9]

In early 1952, Bricker decided that the rights of the states and the people were sufficiently imperiled to warrant the otherwise extreme recourse of introducing a constitutional amendment to safeguard them. In his view, the jurisprudential trends exemplified in Oyama and Fujii gravely jeopardized the integrity of “existing laws which are in our Bill of Rights and our Constitution, thereby forcing unacceptable theories and practices upon the citizens of the United States of America.”[10] For this reason, he warned, a constitutional amendment was critical to the long-term health, independence, and sovereignty of the American republic.

The Bricker Amendment contained several crucial provisions. First, any provision of a treaty that conflicted with the letter of the Constitution would be rendered null and void. Second, a treaty would become effective as internal law only with the passage of appropriate legislation by Congress; that is, treaties would not be self-executing. Finally, the Amendment would rein in the executive with the requirement that all executive agreements between the President and any international organization or foreign power “be made only in the manner and to the extent to be prescribed by law.” Such agreements “shall be subject to the limitations imposed on treaties, or the making of treaties.” This stipulation would ensure that the executive could not evade the requirements for treaties merely by signing executive agreements instead.[11]

The Amendment’s supporters hoped that these provisions would clear up the ambiguity in the Constitution over the exact implications of the claim in Article VI that “[t]his Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties . . . shall be the supreme law of the land . . . anything in the Constitution or laws of any state to the contrary notwithstanding.” In the pages of The Freeman, Frank Holman described the Amendment as necessary to preserve “our basic rights as protected by our own Constitution and the Bill of Rights.”[12]

The Amendment would obviously strike a forceful blow against members of Congress who may have wished to cite the Charter when drafting civil-rights measures.[13] In hearings held to discuss the Amendment, Eberhard Deutsch, a member of the ABA’s Committee on Peace and Law, cited the dangers of the Fujii case and suggested that without passage of the Bricker Amendment, the American Left could well hold “that the entire civil rights program has already effectively been imposed on the United States through the United Nations Charter itself, without the need for any congressional action whatever.”[14]

While the Bricker Amendment earned the contempt of influential members of the Washington Establishment, the libertarian journalist Garet Garrett recognized its populist origins. What was really at stake, Garrett insisted, was the people’s ability to have a voice in the kind of international agreements that would be binding on them, and the protection of everyone’s constitutional rights from the whims of executive fiat. “The people are told they know not what they do,” he wrote. “They would weaken American leadership in the world and perhaps destroy mankind’s hope of peace. But all they wanted was simply to be let alone.”[15]

The editors of the conservative weekly Human Events agreed with Garrett, gratified by the outpouring of support for the Amendment by ordinary Americans. Early in 1954 the editors exulted in the success of “The Vigilant Women of the Bricker Amendment,” who had established regional coordinators in 39 states and whose officers succeeded in bringing 500,000 signatures to Washington.[16]

Ultimately, the George Amendment, a watered-down version of Senator Bricker’s original proposal, failed by one vote to receive the necessary two-thirds majority of the Senate.

A good many Republicans, upon learning of the Eisenhower Administration’s staunch opposition to the Amendment, withdrew their support out of loyalty to the President. Not surprisingly, the vast majority of the most liberal senators in each party—whom the Old Right Chicago Tribune contemptuously described as “all the New Dealers”—also voted against it.

Positive Effects of the Bricker Amendment

Some conservatives maintained that all was not necessarily lost. Indeed, the Bricker fight may itself have had some positive effects on the conduct of U.S. foreign policy. John Foster Dulles, for example, hoped that the State Department’s refusal to ask for ratification of the Genocide Convention and its decision to end the U.S. role in securing a universal human rights covenant would help to mollify supporters of the Bricker Amendment.[17]President Eisenhower, moreover, proved himself reasonably trustworthy in his handling of foreign affairs, consulting Congress during crises in Indochina in 1954, the Far East in 1955, and the Middle East in 1957—perhaps in part as a consequence of John Bricker’s efforts and the popular support they received.

Free-market economist Henry Hazlitt even remained cautiously optimistic of future victory. One way to carry on the struggle, he proposed, would be to introduce a new amendment by which the House of Representatives, as “the body that most directly represents the people,” would be given a voice in treaty ratification. Since House members, more than their colleagues in the Senate or in the other two branches of government, were subject to swift removal by an angry populace, Hazlitt believed that they would be less likely to compromise American sovereignty. By shifting some of the authority over ratification to the House, the people would have much greater recourse if they believed their rights had been threatened by international treaties.[18]

Others were less sanguine. The editors of The Freeman lamented that the defeat symbolized the ascendancy of the Cold War notion that old-fashioned republican, constitutional government had grown outmoded and even dangerous for the United States, and that the President needed “great freedom of action” in foreign affairs. “Freedom from what?” asked the editors. “Well, freedom from the slow and meddlesome restraints of Congress, freedom from the bickerings of partisanship, freedom from a too narrow interpretation of the Constitution, and, above all, freedom from the anti-cries of the people.”[19]

The story of the Bricker Amendment is more than a historical curiosity. The 1990s have witnessed a renewed assault on American sovereignty. We have seen the ratification of trade agreements whose supranational commissions seek to exercise a kind of veto power over American trade, labor, and environmental policy. Just last year, the UN met to determine the “rights” of women and children around the globe. Before that, global functionaries were busy with plans to dictate the environmental policies of every nation on the planet.

Today the treaty power poses as grave a threat to self-government as ever before. The voices that speak for American independence are few and far between. As the twentieth century comes to a close, post-Cold War America awaits its John Bricker.

Failure To Pass The Bricker Amendment In 1953 Shows The United States Is Just Another Vassal Nation Of The United Nations.

The U.S. Constitution Has One Big Flaw.

SATURDAY, APRIL 25, 2009

vincentgioiasblog.blogspot.com

It is agreed among most of us that the creators of the U.S. Constitution did an amazingly competent job to protect individual rights and limit the national government’s role in our lives. Of course for at least the last 50 years or so socialists parading as liberals have managed to thwart the original intent of the Constitution throughout all three branches of government but that doesn’t detract from the generally fine work of our country’s founders.

However since man is fallible and not immune to error, the Constitution contains one glaring error which enables opponents of freedom, liberty and individual rights to impose their philosophy on all of us; this mistake is in the constitutional language that makes treaties entered into by the United States the supreme law of the land; overruling all other federal and state laws and judicial decisions to the contrary.

It is harmless enough to say as it does in Article II, Section 2 that The President “shall have power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur … “; but it was undoubtedly not envisioned that the President and the Senate would be composed of people who would want to rewrite the Constitution and diminish the rights and freedoms built into the original language of the Constitution and enshrined in the Bill of Rights.

The problem and grievous mistake is what is written in Article VI which states in part:

“This Constitution and the Laws of the United States shall be made in Pursuance thereof; and all treaties made, or which shall be made, under the authority of the United states, shall be the Supreme law of the Land, and the judges in every state shall be bound thereby, any Thing in the Constitution or the Laws of any State to the Contrary notwithstanding.”

In other words, all provisions in the Constitution, including the Bill of Rights, and all state laws can be obliterated in one fell swoop by a treaty signed by the president and approved by two thirds of the senate. With a president like Obama and an essentially veto-proof senate (including the renegade Republicans who have already demonstrated disregard of the Constitution) treaties formulated by the United Nations in direct opposition to our constitutional rights can become de facto and de jure amendments to the Constitution.

There are many, many horrendous treaties proposed by the United Nations and signed onto by countries around the world but until now some of the most intrusive have not been approved by the U.S. Senate even though a president has signed them. Recent treaties of this sort that come to mind are treaties signed by President Clinton such as Kyoto, and the Law of the Sea Treaty. As the UN became more and more dominated by anti-American countries a plethora of treaties antagonistic to our Constitution have been produced.

220px-John_W._Bricker_cph.3b31299
But One Man Tried To Fix The Flaw In The U.S. Constitution In 1953. Senator John Bricker From Ohio.

Source: ohiohistorycentral.org

Although never adopted, the Bricker Amendment would have reduced the president’s ability to negotiate agreements with foreign powers without congressional approval.

In 1953, John Bricker, a United States senator from Ohio, introduced an amendment to the United States Constitution. It became known as the Bricker Amendment. Bricker was upset by the United States’ involvement in the Korean War. He objected to President Harry Truman’s actions in the conflict, namely sending United States soldiers to Korea under the authority of the United Nations without prior approval of the United States Congress.

The amendment read as follows:

Section 1.A provision of a treaty which conflicts with this Constitution shall not be of any force or effect.
Section 2.A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.
Section 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.
Section 4.The congress shall have power to enforce this article by appropriate legislation.

The United States Senate defeated the amendment twice, first by eight votes and then, on a second vote, by a single tally. “And that single vote was from former President Lyndon Johnson who was Senate Minority Leader at the time.” Michael Difensore. While numerous groups, including anti-war groups, various women’s organizations, and veterans’ groups, supported the amendment, staunch opposition from President Dwight David Eisenhower resulted in the proposal’s defeat.

Bricker,_John_W._(2)
John William Bricker was born on September 6, 1893, near Mt. Sterling, Ohio. He attended public schools in Madison County and The Ohio State University. He graduated from Ohio State with an undergraduate degree in 1916. Bricker attempted to enlist in the United States Army during World War I, but the military refused to accept him because of a low pulse rate. Disappointed, Bricker did succeed in gaining entry to the Army Chaplain Corps. Upon the war’s conclusion, Bricker enrolled in the law school at The Ohio State University, graduating in 1920.

Bricker began to practice law in Columbus, Ohio, in 1920, but he also quickly pursued a political career. From 1920 to 1928, he served as the city solicitor for Grandview Heights, Ohio. From 1923 to 1927, he also worked as one of Ohio’s assistant attorney generals. In 1932, Bricker became the attorney general of Ohio, only to leave this position in 1939, following winning election as the state’s governor, a position that he had first sought unsuccessfully in 1936. As governor, Bricker had to deal with the end of the Great Depression and World War II. He succeeded in eliminating the state’s deficit and also increased funding for Ohio’s schools. He served three terms, from 1939 to 1945.

In 1944, Bricker, a Republican, had unsuccessfully run for the Vice Presidency of the United States. Upon ending his third term as governor, Bricker proceeded to win election to the United States Senate. He served two terms, from 1947 to 1959. He was unsuccessful in 1958 when he sought a third term. Bricker’s most famous act while a senator was his sponsorship of the Bricker Amendment. This act would have limited the president’s ability to enter into agreements with foreign nations. It lost by a single vote in the Senate and was never enacted. Following his defeat for reelection, Bricker returned to his law practice in Columbus. He died on March 22, 1986.

Source: antiwar.com By Justin Raimondo

The problem of international treaties superseding the U.S. Constitution and undermining the foundations of our Republic is not a new one. The conservative movement of the early 1950’s, which looked on the United Nations with extreme suspicion, was particularly sensitive to this threat — and they hit upon a solution: The Bricker Amendment.

Introduced into the Senate in February, 1952, as Senate Joint Resolution 130, the “Bricker Amendment” to the Constitution read as follows:

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

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

Section 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.

Section 4. The congress shall have power to enforce this article by appropriate legislation.

Mobilizing to support Bricker, conservatives built a grand coalition which included all the major veterans groups, the Kiwanis Clubs, the American Association of Small Business, many women’s groups, as well as the conservative activist organizations of the time, such as the Freedom Clubs and the Committee for Constitutional Government. The conservative press joined in the campaign; writing in Human Events, Frank Chodorov said that

The proposed amendment arises from a rather odd situation. 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.

The breach in our defenses, said Chodorov, is in Article VI of the Constitution, which provides that “… All Treaties …shall be the supreme Law of the Land… any Thing in the Constitution to the contrary notwithstanding.” At the time of the Founders, the division between foreign and domestic policy was clear enough; there was never any intention, as Jefferson wrote, to enable the President and the Senate to “do by treaty what the whole government is interdicted from doing in any way.”

But as the concept of limited government was eroded — and under pressure from the endless stream of pacts, covenants, and executive agreements issuing forth from the United Nations and its American enthusiasts — the chink in our constitutional armor widened. Just as the growth of administrative law had threatened to overthrow the old Republic during the darkest days of the New Deal, so under Truman and Eisenhower the burgeoning body of treaty law threatened to overthrow U.S. sovereignty. Executive agreements had created administrative law of a new type; treaties which sought to regulate domestic economic and social behavior to a degree never achieved by the Brain Trusters. If the New Deal had failed to completely socialize America, to conservatives it often seemed as if the United Nations seemed determined to finish the job. According to the UN Declaration of Human Rights, human beings were endowed with all sorts of “rights,” including the right to a job and the right to “security.” There were, however, certain significant omissions, chief among them the right to own and maintain private property. Another equally glaring omission was the unqualified right to a free press, the regulation of which is left up to member nations. When three Supreme Court justices, including the Chief Justice, cited the UN Charter and the NATO treaty in support of their argument that Truman had the right to seize the steel mills, conservatives went into action — and the fight for the Bricker Amendment began in earnest.

The Eisenhower Administration, and particularly the U.S. State Department, went all out to defeat the Amendment. Leading the opposition was Secretary of State John Foster Dulles. This was the same John Foster Dulles who had said, two years previous, that “The treaty power is an extraordinary power, liable to abuse,” and warned that “Treaties can take powers away from the Congress and give them to the President. They can take powers from the states and give them to the federal government or to some international body and they can cut across the rights given to the people by their Constitutional Bill of Rights.” Hammered with this quote by Clarence Manion, Dean of Law at Notre Dame University, and a leading proponent of the Bricker Amendment, Dulles could only take refuge in the argument that this President would never compromise U.S. sovereignty.

Although the Bricker Amendment started out with fifty-six co- sponsors, it eventually went down to defeat in the U.S. Senate, 42-50, with 4 not voting. (A watered-down version, the “George proposal,” lost by a single vote.) The defection of Senators William Knowland and Alexander Wiley from conservative Republican ranks on this occasion was particularly significant, and marked the beginning not only of Wiley’s chairmanship of the Senate Foreign Relations Committee, but also the decline of the movement to put and keep America first.

As Frank E. Holman, president of the American Bar Association, and the sparkplug of the Bricker Amendment movement, wrote:

In the destiny of human affairs a great issue like a righteous cause does not die. It lives on and arises again and again until rightly won. However long the fight for an adequate Constitutional Amendment on treaties and other international agreements, it will and must be won. This will be the history of the Bricker Amendment as it has been the history of all other great issues and causes.

Holman’s comments were published in 1954 as Story of the Bricker Amendment, (The First Phase) — a title which one can only hope is prophetic.