Bricker Amendment

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For the texts of proposals, see Texts of the Bricker Amendment. For a timeline of events, see Timeline of events related to the Bricker Amendment.

Senator John W. Bricker, the sponsor of the proposed constitutional amendment to limit the "treaty power" of the United States government.

Senator John W. Bricker of Ohio, a conservative Republican, was influenced by the ABA's work and first introduced a constitutional amendment in 1951. After the election of 1952 brought a Republican president and congress to power, Bricker's plan seemed destined to be sent to the individual states for ratification. The best-known version of the Bricker Amendment, considered by the Senate in 1953–54, declared that no treaty could be made by the United States that conflicted with the Constitution, was self-executing without the passage of separate enabling legislation through Congress, or which granted Congress legislative powers beyond those specified in the Constitution. It also limited the president's power to enter into executive agreements with foreign powers.

Bricker's proposal attracted broad bipartisan support 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. Despite wide initial support, the Bricker Amendment was blocked through the intervention of President Dwight D. Eisenhower and failed in the Senate by a single vote in 1954. Three years later the United States Supreme Court explicitly ruled in Reid v. Covert that the Bill of Rights cannot be abrogated by agreements with foreign powers. Nevertheless, Senator Bricker's ideas still have supporters, and new versions of his amendment have been reintroduced in Congress periodically.

Historical background

American isolationism

President George Washington warned Americans of the dangers of foreign alliances.

In the Twentieth Century, America initially was neutral in World War I and avoided entering the conflict for three years. President Woodrow Wilson, a Democrat, used his foreign policy to his advantage, winning reelection in 1916 with the slogan "he kept us out of war." Once hostilities were concluded, Republican Senators William E. Borah of Idaho and Henry Cabot Lodge of Masschusetts led like-minded colleauges in the United States Senate to not ratify the Treaty of Versailles (1919) or join both bodies created by it, the League of Nations and the World Court, for fear of losing American sovereignty.Margaret Olwen Macmillan. Paris 1919 : Six Months That Changed the World. New York: Random House, 2002; Leroy Ashby. The Spearless Leader: Senator Borah and the Progressive Movement in the 1920’s. Urbana, Illinois: University of Illinois Press, 1972; Marian C. McKenna. Borah. Ann Arbor, Michigan: University of Michigan Press, 1961; John A. Garraty. Henry Cabot Lodge: A Biography. New York: Alfred A. Knopf, 1953.

This fear of foreign control was long associated with Roman Catholicism, America having inherited a distaste of the faith from Britain. As recently as the 1960 presidential election in which a Catholic, John F. Kennedy, was elected, there were Americans who believed Catholics' first loyalty would be to the pope and not the United States.In 1948, Paul Blanshard published a series of articles in The Nation warning of Catholics having too much influence in American politics. These articles were published as American Freedom and Catholic Power. Boston: Beacon Press, 1949. Worries about true allegiances led to laws restricting immigrants such as the Chinese Exclusion Act of 1882, the Johnson-Reed Act of 1924, the Smith Act of 1940, and numerous state laws restricting foreigners from engaging in business or owning land. Similiarly, America long maintained a protectionistic trade policy with high tariffs on foreign products, notably the Hawley-Smoot Tarriff of 1930.

President Franklin Delano Roosevelt had strong opposition to his foreign policy from isolationists.

Similiarly, several times after the conclusion of World War I, constitutional amendments were proposed in Congress to require a nationwide referendum on declaring war.Wayne S. Cole. Roosevelt & the Isolationists, 1932-1945. Lincoln, Nebraska: University of Nebraska Press, 1983. Chapter 17. The best known of these proposals was the Ludlow Amendment, sponsored by Representative Louis L. Ludlow, a Democrat of Indiana. When President Roosevelt in 1937 proposed a "quarantine" of aggressing nations such as Japan, he found little support, remarking "It's a terrible thing to look over your shoulder when you are trying to lead—and find no one there."Doris Kearns Goodwin. No Ordinary Time: Franklin and Eleanor Roosevelt: The Home Front in World War II. New York: Simon and Schuster, 1994. 22. The America First Committee, formed in 1940 to keep the United States out of World War II, included Americans across the political spectrum from socialist Norman M. Thomas, journalist John T. Flynn of The New Republic, and Senator Burton K. Wheeler of Montana on the left to Chicago Tribune publisher Colonel Robert R. McCormick, Sears, Roebuck chairman General Robert E. Wood, and Senator Nye on the right.Wayne S. Cole. America First: The Battle Against Intervention, 1940-41. Madison: University of Wisconsin Press, 1953; Ruth Sarles. A Story of America First: The Men and Women Who Opposed U.S. Intervention in World War II. Westport, Connecticut: Praeger, 2003. (The official history of America First.); Norman M. Thomas. Keep America Out of War. New York: Frederick A. Stokes, 1939; Harry Fleischman. Norman Thomas, A Biography: 1884-1968. New York: W.W. Norton, 1969. Chapter 14; Michele Stenehjem Gerber. An American First : John T. Flynn and the America First Committee. New Rochelle, New York: Arlington House Publishers, 1976; Burton K. Wheeler and Paul F. Healy. Yankee from the West : The Candid, Turbulent Life Story of the Yankee-born U.S. Senator from Montana. Garden City, New York: Doubleday, 1962; Richard Norton Smith. The Colonel: The Life and Legend of Robert R. McCormick, 1880-1955. Boston: Little, Brown, 1997. Chapter 13; James C. Worthy. Shaping an American Institution: Robert E. Wood and Sears, Roebuck. Urbana, Illinois: University of Illinois Press, 1984. 46-47; Wayne S. Cole. Senator Gerald P. Nye and American Foreign Relations. Minneapolis: University of Minnesota Press, 1962. When President Roosevelt proposed helping the United Kingdom, Senator Wheeler famously declared his opposition by claiming "the lend-lease-give program is the New Deal's triple-A foreign policy; it will plow under every fourth American boy."Warren F. Kimball. The Most Unsordid Act: Lend-Lease, 1939-1941. Baltimore, Maryland: The Johns Hopkins University Press, 1969. Senator Wheeler was even thought to have leaked the United States's Rainbow 5 War plan Orange for use against Japan only days before the attack on Pearl Harbor on December 7, 1941.Richard Norton Smith. The Colonel: The Life and Legend of Robert R. McCormick, 1880-1955. Boston: Little, Brown, 1997. 418. Smith says there is evidence the war plans were deliberately leaked as a provocation to secure a declaration of war on the United States by Hitler, the leak orchestrated either by the United States government or British Intelligence's William Stephenson. Typical of American sentiment was the title of an anti-interventionist book, Why Meddle in Europe?Boake Carter. Why Meddle in Europe: Facts, Figures, Fictions, and Follies. New York: Robert M. McBride, 1939. Even Bainbridge Colby, Secretary of State under Woodrow Wilson, testified to the Senate Foreign Relations Committee in 1939 that entering World War I had been a mistake and the United States would have been better off even if Germany had won that conflict."New Bill Revives 'Cash, Carry' Plan." The New York Times. May 5, 1939. 9.

Fears return after World War II

Holman, a Utah native and Rhodes scholar, was elected president of the American Bar Association in 1947 and dedicated his term as president to warning Americans of the dangers of "treaty law."Frank E. Holman. The Life and Career of a Western Lawyer, 1886-1961. Baltimore, Maryland: Port City Press, 1963; Frank E. Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954. See also Yong-nok Koo. Politics of Dissent in U.S. Foreign Policy: A Political Analysis of the Movement for the Bricker Amendment. Seoul: American Studies Institute at Seoul National University, 1978. 21 et seq. Robert H. Jackson, later a member of the United States Supreme Court, skeptically wrote of the authority of leaders of the bar associations, who "generally pyramid conservatism. At the top of the structures our bar association officials are as conservative as cemetery trustees." Robert H. Jackson. "The Lawyer: Leader or Mouthpieces?" Journal of the American Judicature Society. vol. 18 (October 1934). 72. Quoted by Tananbaum, 7. While Article II of the United Nations Charter stated "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state," an international equivalent to the Tenth Amendment, Holman saw the work of the U.N. on the proposed Genocide Convention and Universal Declaration of Human RightsGladwin Hill. "U.N. Rights Drafts Held Socialistic: Holman, Bar Association Head, Warns They Would Renounce Many Basic U.S. Principles." The New York Times. September 18, 1948. 4. and numerous proposals of the International Labor Organization, a body created under the League of Nations, as being far outside the UN's powers and an invasion of American liberties.The Genocide Convention's text can be found on-line [here].

Holman cautioned the Genocide Convention would subject Americans to the jurisdiction of foreign courts with unfamiliar procedures and without the protections afforded under the Bill of Rights. He said the Convention's language was sweeping and vague and offered a scenario where a white motorist who struck and killed a black child could be extradited to The Hague on genocide charges.Tananbaum, 13. Holman's critics claimed the language was no more sweeping or vague than the state and Federal statutes that American courts interpreted every day. Duane Tananbaum, the leading historian of the Bricker Amendment, wrote "most of ABA's objections to the Genocide Convention had no basis whatsoever in reality" and his example of a car accident becoming an international incident was not possible.Tananbaum, 14. Eisenhower's Attorney General Herbert Brownell called this scenario "outlandish".Herbert Brownell and John P. Burke. Advising Ike: The Memoirs of Attorney General Herbert Brownell. Lawrence, Kansas: University Press of Kansas, 1993. 265.

But Holman's hypothetical alarmed southern Democrats who had gone to great lengths to obstruct Federal action targeted at ending the Jim Crow system of segregation in the American South because they feared that, if ratified, the Genocide Convention could be used with the Constitution's necessary-and-proper clause to pass a Federal civil rights law despite the conservative view that such a law would go beyond the enumerated powers of Article I, Section 8.Tananbaum, 14. President Eisenhower's aide Arthur Larson said Holman's warnings were part of "all kinds of preposterous and legally lunatic scares [that] were raised," including "that the International Court would take over our tariff and immigration controls, and then our education, post offices, military and welfare activities."Arthur Larson. Eisenhower: The President that Nobody Knows. New York: Charles Scribner's Sons, 1968. 144. In Holman's own book advancing the Bricker Amendment he wrote the U.N. Charter meant the Federal government could:

control and regulate all education, including public and parochial schools, it could control and regulate all matters affecting civil rights, marriage, divorce, etc; it could control all our sources of production of foods and the products of the farms and factories; . . . it could regiment labor and conditions of employment.Frank E. Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954. 38.

Legal background

The Constitution of the United States of America granted the Federal government control of foreign affairs.

The United States Constitution gave power over foreign affairs to the Federal government and restricted the states' authority in this realm.  Article I, section ten provides, "no State shall enter into any Treaty, Alliance, or Confederation" and that "no State shall, without the Consent of the Congress . . . enter into any Agreement or Compact with another State or with a foreign Power."  The Federal government's primacy was made clear in the supremacy clause of Article VI, which declares, "This Constitution, and the laws of the United States which 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 Laws of any State to the Contrary notwithstanding."In general on treaties and the Constitution, see Roger Lea MacBride.  Treaties Versus the Constitution.  Caldwell, Idaho:  The Caxton Printers, 1953.  While executive agreements were not mentioned in the Constitution, Congress authorized them for delivery of the mail as early as 1792.An Act to Establish the Post-Office and Post Roads Within the United States.  Act of February 20, 1792. ch. 7.  1 Stat. 232.

Early precedents

No treaties which shall be directly opposed to the existing laws of the United States in Congress assembled shall be valid until such laws shall be repealed, or made conformable to such treaty; nor shall any treaty be valid which is contradictory to the Constitution of the United States.Akhil Amar Reed. America's Constitution: A Biography. New York: Random House, 2005. 307.

Early precedents striking down state laws in conflict with treaties arose from the peace treaty with Britain,See Ware v. Hylton, 3 Dall. 199 (1796), Hopkirk v. Bell, 7 U.S. (3 Cran.) 454 (1806), [link], Higginson v. Mein, 8 U.S. (4 Cran.) 415 (1808)[link], Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cran.) 603 (1813), [link], Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 603 (1816), Chirac v. Chirac's Lessee, 15 U.S. (2 Wheat.) 259 (1817), [link], Orr v. Hodgson, 17 U.S. (4 Wheat.) 453 (1819) [link], Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 21 U.S. (8 Wheat.) 464 (1823)[link], Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet, 29 U.S. 480 (1830). [link]. but subsequent treaties were found to trump city ordinances,Asakura v. City of Seattle, 265 U.S. 332 (1924).[link] (Seattle law limiting business licenses to American citizens violates the treaty of commerce with Japan guaranteeing Japanese citizens right to conduct business in America). state laws on escheat of land owned by foreignersHauenstein v. Lynham, 100 U.S. 483 (1879) [link] and Terrace v. Thompson, 263 U.S. 197 (1923) [link]. and, in the 20th Century, state laws regarding tort claims.Garcia v. Pan American Airways, 269 App. Div. 287, 55 N.Y.S. 2d 317 (1945), affirmed 295 N.Y. 852, 67 N.E. 2d 257, Lee v. Pan American Airways, 89 N.Y.S. 2d 888, 300 N.Y. 761, 89 N.E. 2d 258 (1949), cert. denied 339 U.S. 920 (1950). In a case involving a treaty concluded with the Cherokee Indians, the Supreme Court declared "It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty."The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870) at 621-622. See also Doe v. Braden, 57 U.S. (16 How.) 635 (1835). [link], Botiller v. Dominguez, 130 U.S. 238 (1889). [link] and The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889). [link].

Likewise, in a case regarding ownership of land by foreign nationals, the Court wrote "The treaty power, as expressed in the constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the government, or of its departments, and those arising from the nature of the government itself, and of that of the states. It would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government, or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."De Geoffroy v. Riggs, 133 U.S. 258 (1890) at 267. Justice Stephen Johnson Field, dissenting in an 1898 immigration case, wrote "that statutes enacted by Congress, as well as treaties made by the president and senate, must yield to the paramount and supreme law of the constitution."United States v. Wong Kim Ark, 169 U.S. 649 (1898) at 671. These prior statements seemed to be overruled in Missouri v. Holland.

20th Century rulings

Missouri v. Holland

Justice Oliver Wendell Holmes's opinion in Missouri v. Holland was cited as why the Bricker Amendment was needed.

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found.252 U.S. 416 at 433.

Proponents of the Bricker Amendment said this language made it essential that language to limit the treaty-making power be added. Raymond Moley wrote in 1953 that Holland meant "the protection of an international duck takes precedence over the constitutional protections of American citizens."Newsweek, August 10, 1953. 88. But legal scholars such as Professor Edward Samuel Corwin of Princeton University said the language of the Constitution regarding treaties—"under the authority of the United States"—was written so as to protect the 1783 peace treaty with Britain. Holmes had simply misunderstood and this became "in part the source of Senator Bricker's agitation."Edward S. Corwin. The President: Office and Powers, 1787-1957. 4th ed. New York: New York University Press, 1957. 421. Quoted in Yong-nok Koo. Politics of Dissent in U.S. Foreign Policy: A Political Analysis of the Movement for the Bricker Amendment. Seoul: American Studies Institute at Seoul National University, 1978. 56-57. Professor Zechariah Chafee, Jr. of Harvard Law School said "the Framers never talked about having treaties on the same level as the Constitution. What they did want was to make sure a state could no longer flout any lawful action taken by the nation." "Supreme", as used in Article VI, Chafee claimed, "means simply supreme over the states."Zechariah Chafee, Jr. "Bricker Proposal Opposed." (Letter). The New York Times. January 28, 1954. 26.

Pink and Belmont

President Franklin Delano Roosevelt (center) at Yalta in 1945, where he made an agreement with Winston S. Churchill and Joseph Stalin conservatives said showed the need for a constitutional amendment.

That the negotiations, acceptance of the assignment and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution (article 2, 2), require the advice and consent of the Senate.United States v. Belmont, 301 U.S. 324 (1937) at 330.

The powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to determine the public policy of the United States with respect to the Russian nationalization decrees. What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government. That authority is not limited to a determination of the government to be recognized. It includes the power to determine the policy which is to govern the question of recognition. Objections to the underlying policy as well as objections to recognition are to be addressed to the political department and not to the courts.United States v. Pink, 315 U.S. 203 (1942) at 229, internal quotations and citations omitted.

Many conservatives feared a future president might enter into another agreement like the one President Roosevelt made at Yalta. The Yalta Agreement, which gave Eastern Europe to the Soviet Union, was frequently cited as what the unchecked powers of the president could lead to.

Rulings during Congressional debate

But the dissent of Chief Justice Fred M. Vinson in the "steel seizure case" alarmed conservatives. President Harry S. Truman had seized the American steel industry to prevent a strike he claimed would interfere with the prosecution of the Korean War. Though the United States Supreme Court found this illegal, Vinson's words were used to justify the Bricker Amendment, Vinson defending the seizure and advocating sweeping exercise of executive authority and the importance of the United Nations.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 667-709 (1952) (Vinson, C.J., dissenting). Those warning of "treaty law" claimed that in the future, Americans could be endangered with the use of the executive powers Vinson supported.

State precedents

Internationalization and the United Nations

John Foster Dulles said restrictions were needed on treaties until he became Secretary of State in the Eisenhower Administration.

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. In a speech to the American Bar Association's regional meeting at Louisville, Kentucky on April 11, 1952, John Foster Dulles, an American delegate to the United Nations, said, "Treaties make international law and they also make domestic law. Under our Constitution, treaties become the Supreme Law of the Land. They are indeed more supreme than ordinary laws, for Congressional laws are invalid if they do not conform to the Constitution, whereas treaty laws can override the Constitution." Dulles said the power to make treaties "is an extraordinary power liable to abuse.""The Bricker Amendment: A Cure Worse Than the Disease?" Time. July 13, 1953. 20-21. Senator Everett McKinley Dirksen, a Republican of Illinois, declared "we are in a new era of international organizations. They are grinding out treaties like so many eager beavers which will have effects on the rights of American citizens."Ibid. Eisenhower's Attorney General Herbert Brownell admitted executive agreements "had sometimes been abused in the past."Herbert Brownell and John P. Burke. Advising Ike: The Memoirs of Attorney General Herbert Brownell. Lawrence, Kansas: University Press of Kansas, 1993. 264. Frank E. Holman wrote Secretary of State George C. Marshall in November 1948 about the Human Rights Declaration and its dangers only to be brushed off that it was "merely declaratory in character" and had no legal effect.Tananbaum, 10. The conservative ABA called for a Constitutional amendment to address what they perceived to be a potential abuse of executive power. Holman described the threat thusly:

More or less coincident with the organization of the United Nations a new form of internationalism arose which undertook to enlarge the historical concept of international law and treaties to have them include and deal with the domestic affairs and internal laws of independent nations.Frank E. Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954. viii.

Senator Bricker thought the "one world" movement advocated by Wendell Willkie, the Republican nominee against Roosevelt in the 1940 election, 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.Frank E. Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954. 6. Holman said the Commission was "controlled by Communists and international socialists." Story, 71.

Frank E. Holman testified before the Senate Judiciary Committee that the Bricker Amendment was needed "to eliminate the risk that through 'treaty law' our basic American rights may be bargained away in attempts to show our good neigborliness and to indicate to the rest of the world our spirit of brotherhood."Tananbaum, 54. W.L. McGrath, president of the Williamson Heater Company in Cincinnati, Ohio, told the Senate that the International Labor Organization, to which he had been an American delegate, was "seeking to set itself up as a sort of international legislature to formulate socialistic laws which it hopes, by the vehicle of treaty ratification, can essentially be imposed upon most of the countries of the world."Tananbaum, 54.

Congress considers the proposal

President Dwight D. Eisenhower thought the Bricker Amendment would undermine American foreign policy and worked to defeat it.

Republican Senator John W. Bricker, an attorney, had served as governor of Ohio and was Thomas E. Dewey's running mate in the 1944 campaign before winning a Senate seat in the 1946 Republican landslide.  Author Robert A. Caro declared Senator Bricker to be "a fervent admirer" of Senators Robert A. Taft of Ohio, "whom he had three times backed for the presidential nomination," and Joseph R. McCarthy of Wisconsin, "whom he would support to the last," and stated that Bricker was "a fervent hater of foreign aid, the United Nations, and all those he lumped with Eleanor Roosevelt under the contemptous designation of 'One Worlders'.  He was the embodiment of the GOP's reactionary Old Guard", borne out by his voting record:  Americans for Democratic Action gave him a "zero" rating in 1949,Caro, 528; Tananbaum, 22-23.  However, Bricker was not an isolationist; he had voted in favor of the Marshall Plan and the North Atlantic Treaty.

Historians see the Bricker Amendment as "the high water mark of the isolationist surge in the 1950s" and "the embodiment of the Old Guard's rage at what it viewed as twenty years of presidential usurpation of Congress's constitutional powers" which "grew out of sentiment both anti-Democrat and anti-presidential."Robert A. Caro. The Years of Lyndon Johnson: Master of the Senate. New York: Alfred A. Knopf, 2002. 527-528; Walter LaFeber. America, Russia, and the Cold War, 1945-1984. New York: Alfred A. Knopf, 1985. 178-179. Bricker pressing the issue, wrote Time just before the climactic vote, was "a time-bomb threat to both G.O.P. unity and White House-Congressional record.""On Their Knees" Time. January 18, 1954. 20. Senator Bricker warned "the constitutional power of Congress to determine American foreign policy is at stake."LaFeber, 179.

82nd Congress

President Harry S. Truman was adamantly opposed to limitations on executive power and ordered every executive branch agency to report on how the Bricker Amendment would affect its work and to offer this information to the Judiciary Committee.Harry S. Truman. "Memorandum on Proposed Bills Dealing With Treaties and Executive Agreements." May 23, 1953. Public Papers of the Presidents of the United States: Harry S. Truman, 1952-1953. Washington: United States Government Printing Office. 367. Available on-line [here] (accessed May 2, 2006). Consequently, in its hearings, the committee heard from representatives of the Departments of Agriculture, Commerce, Defense, Labor, and the Post Office, along with the Bureau of Internal Revenue, the Securities and Exchange Commission, and the Bureau of Narcotics.Tananbaum, 58. Duane Tananbaum wrote the hearings "provided the amendment's supporters with a wider forum for their argument that a constitutional amendment was needed" and giving opponents a chance to debate the issue.Tananbaum, 60.

Bricker's amendment was an issue in his 1952 re-election campaign. Toledo mayor Michael V. DiSalle railed that the amendment was "an unwarranted interference with the provisions of the Constitution" but Bricker was easily elected to a second term.Tananbaum, 64.

83rd Congress: Consideration by the new Republican majority

The Eisenhower Administration was caught by surprise as Sherman Adams, Eisenhower's chief of staff, thought an agreement had been reached by Bricker to delay introduction of his amendment until after the administration had studied the issue. "Bricker hoped to force the new administration's hand," wrote Duane Tananbaum.Caro, 528; Tananbaum, 67-69. George E. Reedy, aide to Senate minority leader Lyndon B. Johnson of Texas, said it "became apparent from the start that it could not be defeated on a straight-out vote. No one could vote against the Bricker Amendment with impunity and very few could vote against it and survive at all . . . There was no hope of stopping it through direct opposition."Caro, 528. Johnson told his aide Bobby Baker it was "the worst bill I can think of" and "it will be the bane of every president we elect."Caro, 528.

Eisenhower wrote that Senator Bricker was pressing his Amendment "As his one hope of achieving at least a faint immortality in American history."Eisenhower, diary entry for July 24, 1953, page 248. He considered the Amerndment entirely unncessary, telling Stephen E. Ambrose it was "an addition to the Constitution that said you could not violate the Constitution."Stephen E. Ambrose. Eisenhower, Volume 2: The President. New York: Simon and Schuster, 1984. 68.

Eisenhower seeks delay

Eisenhower sent Attorney General Herbert Brownell to meet with Bricker to try to delay consideration of the resolution while the administration studied it; Bricker refused, noting his original proposal was introduced over a year before in the previous session of Congress.Tananbaum, 73. Bricker was willing, however, to compromise on the language of an amendment; he was not like Frank Holman and intent on a particular wording. However, the administration, particularly Dulles, irritated Bricker by refusing to offer an alternative to his resolution.Tananbaum, 77. Eisenhower in private used strong words calling the Bricker Amendment "a stupid blind violation of the Constitution by stupid, blind isolationists" and "if it is true that when you die the name of the things that bothered you the most are engraved on your skull, I'm sure I'll have there the mud and dirt of France during the invasion and the name of Senator Bricker."Geoffrey C. Perrett. Eisenhower. New York: Random House, 1999. 485-487.

G.O.P. infighting

Former Justice Owen J. Roberts led opposition to the Amendment from outside the government.

Despite the overwhelming support, the bill was stalled in the Judiciary Committee by Majority Leader Taft at the behest of President Eisenhower. However, on June 10, Taft resigned as majority leader because of ill health, and five days later the Judiciary Committee reported the measure to the full Senate.Caro, 530. But it would not be acted upon before the end of the session; consideration would begin in January 1954. The long delay allowed opposition to mobilize. Erwin N. Griswold, dean of the Harvard Law School, and Owen J. Roberts, retired justice of the United States Supreme Court, organized the Committee for the Defense of the Constitution.Geoffrey C. Perrett. Eisenhower. New York: Random House, 1999. 487. They were joined by such prominent Americans as attorney John W. Davis,Davis, United States Solictor General under Woodrow Wilson, orchestrated the passage of the Migratory Bird Treaty after the statute protecting birds was found unconstitutional. This was the treaty at issue in Missouri v. Holland. former Attorney General William D. Mitchell, former Secretary of War Kenneth C. Royall, Eleanor Roosevelt, Governor Adlai E. Stevenson, former President Harry S. Truman, Judge John J. Parker, former Justice Felix Frankfurter, Denver Post publisher Palmer Hoyt, the Reverend Harry Emerson Fosdick, socialist Norman Thomas, and General Lucius D. Clay. The Committee claimed the Amendment would give Congress too much power and make America's system to approve treaties "the most cumbersome in the world." Dwight D. Eisenhower. The White House Years: Mandate for Change, 1953-1956. Garden City, New York: Doubleday, 1963. 283. Roberts dismissed the Amendment, declaring "we must decide whether we are to stand on the silly shibboleth of national security," a statement supporters of the Amendment eagerly seized upon.Frank E. Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954. viii. The Committee was joined in opposing the Amendment by the League of Women Voters, the American Association for the United Nations, and the Association of the Bar of the City of New York, one of the few bar associations to oppose the Amendment.Sherman Adams. Firsthand Report: The Story of the Eisenhower Administration. New York: Harper and Brothers, 1961. 106.

Conservatives Clarence Manion, former dean of the University of Notre Dame Law School, and newspaper publisher Frank E. Gannett formed organizations to support the Amendment while a wide spectrum of groups entered the debate. Supporting the Bricker Amendment were the National Association of Attorneys-General, the American Legion, the Veterans of Foreign Wars, the Marine Corps League, National Sojourners, the Catholic War Veterans, the Kiwanis, the U.S. Chamber of Commerce, the National Grange, the American Farm Bureau, the Daughters of the American Revolution, the Colonial Dames, the National Association of Evangelicals, the American Medical Association, the General Federation of Women's Clubs, and the Association of American Physicians and Surgeons. In opposition were Americans for Democratic Action, the American Jewish Congress, the American Federation of Labor, B'nai B'rith, the United World Federalists, the American Civil Liberties Union, and the American Association of University Women, groups Holman characterized as "eastern seaboard internationalists."Frank E. Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954. 17, 23.

Eisenhower aided by Democrats

Senator Lyndon B. Johnson helped President Eisenhower defeat the Bricker Amendment.

Before the Second Session of the 83rd Congress convened, the Amendment "went through a complex and incomprehensible series of changes as various Senators struggled to find a precise wording that would satisfy both the President and Bricker." In fact, President Eisenhower himself in January 1954 said that nobody understood the Bricker Amendment but his position "was clear; he opposed any amendment that would reduce the President's power to conducts foreign policy."Stephen E. Ambrose. Eisenhower, Volume 2: The President. New York: Simon and Schuster, 1984. 154. Minority Leader Johnson persuaded Senator Walter F. George of Georgia to sponsor his own proposal in order to sap support from Senator Bricker's. The George Substitute was introduced on January 27, 1954, and infuriated Bricker especially as George wanted limits on treaties.Caro, 533-534. George warned in the Senate "I do not want a president of the U.s. to conclude an executive agreement which will make it unlawful for me to kill a cat in the back alley of my lot at night and I do not want the President of the U.S. to make a treaty with India which would preclude me from butchering a cow in my own pasture.""Cats, Cows, Pigeons, Fleas." Time. February 22, 1954. 28. Senator George was ideal to oppose the original text as he was a hero to conservatives of both parties for his opposition to the New Deal and surviving President Franklin Delano Roosevelt's subsequent unsuccessful effort to defeat him for re-election in 1938. "Democrats and Republicans alike respected him and recognized his influence."Tananbaum, 144.

Eisenhower worked to prevent a vote, telling Republican Senators that he agreed that President Roosevelt had done things he would not have, but the Amendment would not have prevented the Yalta Agreement.Stephen E. Ambrose. Eisenhower, Volume 2: The President. New York: Simon and Schuster, 1984. 154. By the time the Senate finally voted on the Bricker Amendment on February 26, thirteen of the nineteen Democrats who had co-sponsored it, had withdrawn their support at the urging of Senators Johnson and George.Caro, 536. The original version of S.J. Res. 1 failed 42-50. By a 61-30 vote, the Senate agreed to substitute George's language for Bricker's. With ninety-one senators voting, sixty-one was the necessary two thirds vote for final passage.Caro, 536. Senator Herbert H. Lehman of New York said in the debate "what we are doing is one of the most dangerous and inexcusable things that any great legislative body can do."Caro, 538. Johnson and his aides planned carefully and had several votes in reserve. On final passage, with Vice President Richard M. Nixon presiding, Senator Harley M. Kilgore of West Virginia arrived and cast the deciding vote of "nay". The measure was defeated 60-31. On the vote, thirty-two Republicans voted for the revised Bricker Amendment; fourteen voted against.Caro, 539.

Senator Bricker was embittered by the defeat. "By the mid-1950s," wrote the Senator's biographer, "Bricker had become alienated from the mainstream of his own party . . . fulminating on the far right of the political spectrum." Decades after his defeat he was still furious. "Ike did it!" he said. "He killed my amendment."Richard O. Davies. "John W. Bricker and the Slow Death of Old Guard Republicanism." Chapter 21 of Builders of Ohio: A Biographical History. Edited by Warren Van Tine and Michael Pierce. Columbus, Ohio: The Ohio State University Press, 2003. 279.

Aftermath

Justice Hugo Black's opinion in Reid v. Covert addressed many fears of Bricker Amendment supporters.

The Supreme Court in 1957 declared that the United States could not abrogate the rights guaranteed to citizens in the Bill of Rights through international agreements. Reid v. Covert and Kinsella v. Krueger concerned the prosecution of two servicemen's wives who killed their husbands abroad and were, under the status of forcesSee Administrative Agreement Under Article III of the Security Treaty Between the United States of America and Japan. Agreement of February 28, 1952, 3 UST 3343, TIAS 2492, and Executive Agreement Between the United States of America and the United Kingdom of Great Britain and Northern Ireland Respecting Jurisdiction Over Criminal Offenses Committed by Armed Forces of July 27, 1942, 57 Stat. 1193, E.A.S. 355. Enacted in Britain as United States of America (Victory Forces Act) 1942, 5&6 Geo. 6, c. 31. agreements in place, tried and convicted in American courts martial.Reid v. Covert, 351 U.S. 378 (1956)and Kinsella v. Krueger, 351 U.S. 370 (1956), both reversed on rehearing as Reid v. Covert, 354 U.S. 1 (1957)[link]. See also Frederick Bernays Wiener. Civilians Under Military Justice: The British Practice Since 1689, Especially in North America. Chicago: University of Chicago Press, 1967. Wiener argued Reid and Kinsella before the Supreme Court on behalf of the convicted women. The Court found the Congress had no constitutional authority to subject servicemen's dependents to the Uniform Code of Military Justice and overturned the convictions. Justice Hugo L. Black's opinion for the Court declared:

There is nothing in [the Constitution] which intimates that treaties and laws enacted pursuant to [it] 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. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.Reid v. Covert, 354 U.S. 1, 16 (1957)

The United States ultimately ratified the Genocide Convention in 1986.Convention on the prevention and punishment of the crime of genocide. Adopted by the U.N. General Assembly at Paris December 9, 1948. The enabling legislation was the Genocide Convention Implementation Act of 1987, also known as the Proxmire Act, Pub. L. 100–606, Act of November 4, 1988, 102 Stat. 3045, codified as 18 U.S.C. §1091 et seq.

The Bricker Amendment is occassionaly revived in Congress. For example, in 1997, Representative Helen Chenoweth (R–Idaho) offered her version of the Bricker Amendment, H. J. Res 83 in the 105th Congress, but it died in committee without a hearing.

References

Notes

Table of cases

• Asakura v. City of Seattle, 265 U.S. 332 (1924).[link]
• Botiller v. Dominguez, 130 U.S. 238 (1889). [link]
• The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870). [link]
• The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889). [link]
• Chirac v. Chirac's Lessee, 15 U.S. (2 Wheat.) 259 (1817). [link]
• De Geoffroy v. Riggs, 133 U.S. 258 (1890) [link]
• Doe v. Braden, 57 U.S. (16 How.) 635 (1835). [link]
• Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cran.) 603 (1813). [link]
• Foster v. Nielson, 27 U.S. (2 Pet.) 253 (1829). [link]
• Fujii v. State, 217 P.2d 481 (Cal. App. 2d 1950), rehearing denied 218 P.2d 596 (Cal. App. 2d 1950), reversed 242 P.2d 617 (1952).
• Garcia v. Pan American Airways, 269 App. Div. 287, 55 N.Y.S. 2d 317 (1945), affirmed 295 N.Y. 852, 67 N.E. 2d 257.
• Hauenstein v. Lynham, 100 U.S. 483 (1879). [link]
• Higginson v. Mein, 8 U.S. (4 Cran.) 415 (1808). [link]
• Hopkirk v. Bell, 7 U.S. (3 Cran.) 454 (1806). [link]
• Kemp v. Rubin, 69 N.Y.S.2d 680 (Sup. Ct. Queens 1947).
• Kinsella v. Krueger, 351 U.S. 470 (1956) [link], reversed on rehearing, 354 U.S. 1 (1957)[link].[link]
• Lee v. Pan American Airways, 89 N.Y.S. 2d 888, 300 N.Y. 761, 89 N.E. 2d 258 (1949), cert. denied 339 U.S. 920 (1950).
• Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 603 (1816)
• Missouri v. Holland, 252 U.S. 416 (1920). [link]
• Orr v. Hodgson, 17 U.S. (4 Wheat.) 453 (1819). [link]
• Reid v. Covert, 351 U.S. 487 (1956), reversed on rehearing, 354 U.S. 1 (1957)[link].[link]
• Rice v. Sioux City Memorial Park Cemetery, 245 Iowa 147, 60 N.W.2d 110 (1954), cert dismissed as improvidently granted, 349 U.S. 70 (1955) [link]
• Seery v. United States, 127 F. Supp. 601 (Ct. Claims 1955).
• Sipes v. McGhee, 316 Mich. 615 (1947).
• Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 21 U.S. (8 Wheat.) 464 (1823). [link]
• Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet, 29 U.S. 480 (1830). [link]
• State v. McCullagh, 153 Pac. 557 (Kan. 557).
• State v. Sawyer, 94 Atl. 886 (Maine 1915).
• Terrace v. Thompson, 263 U.S. 197 (1923). [link]
• United States v. Belmont, 301 U.S. 324 (1937)[link]
• United States v. Guy W. Capps, Inc., 100 F.Supp. 30 (E.D. Va. 1952), affirmed 204 F.2d. 655 (4th 1953), affirmed 348 U.S. 296 (1955)[link]
• United States v. McCullagh. 221 Fed 288 (D Kan. 1915).
• United States v. Pink, 315 U.S. 203 (1942) [link]
• United States v. Shauver, 214 Fed 154 (E.D Ark. 1914).
• United States v. Wong Kim Ark, 169 U.S. 649 (1898) [link]
• Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). [link]
• Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 569 (1952). [link]

Table of statutes, treaties, and international agreements

• An Act Concerning Aliens. Act of June 25, 1798, ch. 58, 1 Stat. 570.
• An Act for the Punishment of Certain Crimes against the United States. Act of July 14, 1798, ch. 74, 1 Stat. 596.
• An Act Respecting Alien Enemies. Act of July 6, 1798, ch. 66, 1 Stat. 577.
• An Act to Establish an Uniform Rule of Naturalization. Act of June 18, 1798, ch. 54, 1 Stat. 566.
• An Act to Establish the Post-Office and Post Roads Within the United States. Act of February 20, 1792. ch. 7. 1 Stat. 232.
• Administrative Agreement Under Article III of the Security Treaty Between the United States of America and Japan. Agreement of February 28, 1952. 3 UST 3343. TIAS 2492.
• Convention for the Protection of Migratory Birds of August 16, 1916, T.S. No. 628, 39 Stat. 1702.
• Definitive Treaty of Peace Between the United States of America and His Britannic Majesty. Treaty of September 3, 1783. 8 Stat. 80.
• Executive Agreement Between the United States of America and the United Kingdom of Great Britain and Northern Ireland Respecting Jurisdiction Over Criminal Offenses Committed by Armed Forces of July 27, 1942. 57 Stat. 1193, E.A.S. 355. Enacted in Britain as United States of America (Victory Forces Act) 1942, 5&6 Geo. 6, c. 31.
• Genocide Convention Implementation Act of 1987, also known as the Proxmire Act, Pub. L. 100–606, Act of November 4, 1988, 102 Stat. 3045, codified as 18 U.S.C. §1091 et seq.
• Migratory Bird Treaty Act. Act of July 3, 1918, ch. 148, 40 Stat. 755, 18 U.S.C.§703.
• Neutrality Act of 1935. Act of August 31, 1935, ch. 837, 49 Stat. 1081.
• Neutrality Act of 1936. Act of February 18, 1936, ch. 106, 49 Stat. 1153.
• Neutrality Act of 1937. Act of May 1, 1937, ch. 146, 50 Stat. 121.
• The United Nations Charter. 59 Stat. 1031, T.S. 993.

Select bibliography

• 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. [link]
• Robert A. Caro. The Years of Lyndon Johnson: Master of the Senate. New York: Alfred A. Knopf, 2002. ISBN 0394528360.
• Richard O. Davies. Defender of the Old Guard: John Bricker and American Politics. Columbus, Ohio: The Ohio State University Press, 1993.
• Frank E. Holman. The Life and Career of a Western Lawyer, 1886-1961. Baltimore, Maryland: Port City Press, 1963.
• Frank E. 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.
• United States. Congress. Senate. Committee on the Judiciary. Treaties and Executive Agreements: Hearings Before a Subcommittee of the Committee on the Judiciary, Eighty-second Congress, Second Session, on S.J. Res 130, Proposing an Amendment to the Constitution of the United States Relating to the Making of Treaties and Executive Agreements. Washington, D.C.: United States Government Printing Office, 1952.
• United States. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Amendments. Treaties and Executive Agreements: Hearings Before a Subcommittee of the Committee on the Judiciary, Eighty-third Congress, Second Session, on S.J. Res 1, Proposing an Amendment to the Constitution of the United States Relating to the Making of Treaties and Executive Agreements, and S.J. Res 43, Proposing an Amendment to the Constitution of the United States Relating to the Legal Effects of Certain Treaties. Washington, D.C.: United States Government Printing Office, 1953.
• United States. Congress. Senate. Committee on the Judiciary. Constitutional Amendment Relative to Treaties and Executive Agreements, 83rd Congress, 1st session. Senate Report 412. Calendar 408. Washington, D.C.: United States Government Printing Office, 1953.
• United States. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Amendments. Treaties and Executive Agreements: Hearings Before a Subcommittee of the Committee on the Judiciary, Eighty-fourth Congress, First Session, on S.J. Res 1, Proposing an Amendment to the Constitution of the United States Relating to the Legal Effects of Certain Treaties and Other International Agreements. Washington, D.C.: United States Government Printing Office, 1955.
• United States. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Amendments. Treaties and Executive Agreements: Hearings Before a Subcommittee of the Committee on the Judiciary, United States Senate, Eighty-fifth Congress, First Session, on S.J. Res 3, Proposing an Amendment to the Constitution of the United States Relating to the Legal Effect of Certain Treaties and Other International Agreements. Washington, D.C.: United States Government Printing Office, 1958.

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