Globalism and Sovereignty; T. E. Woods, Jr.

THEFREEMAN IDEASON UBERTY Globalismand Sovereignty: A Short History of the Bricker Amendment by Thomas E. Woods Jr. H istorically, conservatives and libertar ians have always maintained a suspi cion 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 misgiv ings about the steady accretion of power in our own executive branch. American con servatives 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 con trol over the direction of foreign affairswere 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 Presi dent Harry Truman favored a strong exec utive. His 1952 seizure of U.S. steel mills Mr. Woods, an Intercollegiate Studies Institute Richard M. Weaver Fellow, is a doctoral candi date in history at Columbia University. 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 tojustify a measure as serious as the deployment of American troops abroad, many conservatives wondered, mighthe not appeal to the same authority to implement wide-ranging initiatives of social recon struction?

Acutely aware of such concerns, the American Bar Association (ABA) and its president, Frank S. Holman, laid the intel lectual 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 insti tutions 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 Geno cide Convention, the Freedom of Informa tion Covenant, the News Gathering Convention, and the Covenant of Human Rights-with respect to their potential im pact on American sovereignty. Alarmed by 200 the results, the ABA in 1952 endorsed the idea of a constitutional amendment that would safeguard the Constitution from ero sion 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 Amer ican foreign relations.

The dispute dated back to 1913, when Congress passed a measure establishing fed eral regulations over the killing, capturing, or selling of such birds. At the time, federal courts ruled it a usurpation of rights re served to the states under the Tenth Amend ment. But when President Woodrow Wilson codified these regulations in a 1916 treaty with Great Britain, the Supreme Court up held them by citing the so-called supremacy clause of the Constitution. The Court con cluded 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 Mis souri 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 con cerns 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 regard ing that portion of American sovereignty that UN membership may have forced the United States to relinquish.

201 It would not be long before these prece dents would be invoked by American social reformers to justify progressive legislation or the abolition of state and local infringe ments 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, con cluded that lynching fell under federal juris diction 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 ratio nale for the abolition of a California law that restricted land ownership among aliens in eligible for citizenship, since in practice it applied only to Japanese aliens. Two years later, the companion case of SeiFujii v.

California yielded a similar outcome. 6 A conservative backlash against such de velopments was not long in coming. The constitutional ruminations of the National Lawyers Guild and some of the legal rea soning employed in Oyama and Fujii may well have been isolated cases, but they were rich enough with implications for state au tonomy 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 202 THE FREEMAN • APRIL 1996 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 subservi ence 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 Sig nificantly, 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 other wise extreme recourse of introducing a con stitutional amendment to safeguard them. In his view, the jurisprudential trends exem plified in Oyama and Fujii gravely jeopar dized the integrity of "existing laws which are in our Bill of Rights and our Constitu tion, 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, indepen dence, and sovereignty of the American republic.

The Bricker Amendment contained sev eral 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 effec tive as internal law only with the passage of appropriate legislation by Congress; that is, treaties would not be self-executing. Fi nally, the Amendment would rein in the executive with the requirement that all ex ecutive agreements between the President and any international organization or for eignpower' 'be made only in the manner and to the extent to be prescribed by law." Such agreements "shall be subject to the limita tions imposed on treaties, or the making of treaties. " This stipulation would ensure that the executive could not evade the require ments for treaties merely by signing execu tive agreements instead. 11 The Amendment's supporters hoped that these provisions would clear up .the ambi guity 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 pur suance 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 Con stitution 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 ef fectively been imposed on the United States through the United Nations Charter itself, without the need for any congressional ac tion whatever." 14 While the Bricker Amendment earned the contempt of influential members of the Washington Establishment, the libertarian journalist Garet Garrett recognized its pop ulist 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 constitu tional 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, grati fied 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 500,000signatures 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 contemptu ously 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 pol icy. 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 Eisen hower, moreover, proved himself reason ably 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 fu ture victory. One way to carryon the struggle, he proposed, would be to intro duce 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 GLOBALISM AND SOVEREIGNTY 203 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 re course if they believed their rights had been threatened by international treaties. IS Others were less sanguine. The editors of The Freeman lamented that the defeat sym bolized the ascendancy of the Cold War notion that old-fashioned republican, con stitutional government had grown out moded and even dangerous for the United States, and that the President needed "great freedom of action" in foreign affairs. "Free dom 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 Constitu tion, 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 Amer ican sovereignty. We have seen the ratifi cation of trade agreements whose suprana tional 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, globalfunctionaries 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 inde pendence are few and far between. As the twentieth century comes to a close, post Cold War America awaits its John Bricker. o 1. Duane Tananbaum, The Bricker Amendment Contro versy: A Test of Eisenhower's Political Leadership (Ithaca, N.Y.: Cornell University Press, 1988), p. 49. 2. Terence L. Thatcher, "The Bricker Amendment, 1952 54," Northwest Ohio Quarterly 49 (Summer 1977): 107-108. 3. Missouri v. Holland, 252 U.S. 416 (1920). 4. The fears of strict constructionists over the implications of this crucial case are reflected in the very title of Forrest 204 THE FREEMAN • APRIL 1996 Black, "Missouri v. Holland-a Judicial Milepost on the Road to Absolutism," Illinois Law Review 25 (1931): 911-28. 5. Tananbaum, p. 85. 6. Duane Tananbaum, "The Bricker Amendment Contro versy: The Interaction Between Domestic and Foreign Mairs"

(Ph.D. diss., Columbia University, 1980), pp. 102-108. 7. Thatcher, p. 108. 8. U.S. Congress, Senate, Congressional Record, 82nd Cong., 1st sess., 1951, 97, pt. 6: 8255. 9. U.S. Congress, Senate, Congressional Record, 82nd Cong., 1st sess., 97, pt. 6: 8261-8262. 10. U.S. Congress, Senate, Congressional Record, 82nd Cong., 1st sess., 97, pt. 9: 11361. The quotation is taken from a resolution adopted by the Tampa Rotary Club, the text of which Senator Bricker inserted into the Record. 11. Tananbaum, The Bricker Amendment Controversy, p. 223. 12. Frank E. Holman, "American Rights vs. 'Treaty Law,' " The Freeman 3 (August 10, 1953): 803-805. 13. Tananbaum, "Domestic and Foreign Mairs," pp. 283-84. 14. U.S. Congress, Senate, Committee on the Judiciary, Treaties and Executive Agreements, Hearings, 82ndCongress, 2nd session, 1952, pp. 46ft". 15. GaretGarrett, "Nullification by Treaty," The Freeman 3 (May 4, 1953): 549-50.

16. "The Bricker Fight," Human Events 9 (January 27, 1954): 1-2. 17. Tananbaum, "Domestic and Foreign Affairs," p. 290. 18. Henry Hazlitt, "Give the House a Treaty Vote," The Freeman 4 (April 5, 1954): 479-81. 19. "A Question of Sovereignty," The Freeman 4 (March 22, 1954): 439-40. THEFREEMAN IDEASON LIBERTY 1995 Bound Volume S turdily sewn in a single volume with navy blue cloth cover and gold foil stamping, the twelve issues from January through December 1995 - 808 pages, fully indexed for handy reference to the latest literature of free dom. More than 100 feature articles on topics such as education, environment, government regulation and control, health care, individual rights, money, morality and ethics, private propert)T, voluntary action, and international trade. Reviews of more than five dozen books. $24.95 each Save! Special introductory price; $19.95, through April 30, 1996 Note: Freeman bound volumes for the years 1986 through 1994 are available at $24.95 each.