Bricker: Round Two
"The fight has just begun," John W. Bricker said when his proposed constitutional amendment met Senate defeat in 1954.
Last week, the Senate Judiciary Committee gave the nod to an abridged edition of the Ohio Senator's favorite text, the wording changed to render it ostensibly innocuous. Any similarity to previous versions, claim the resolution's advocates, is purely coincidental. If the new amendment is as innocuous as the Brickerites claim, however, it should be unnecessary. On the other hand, if the proposal is supposed to assert itself by implication, if its innocent language obscures hidden teeth, then the amendment could be dangerous as an obstruction to effective foreign dealings. In either case, explicitly superfluous or implicitly harmful, the amendment should be scrapped and the issue closed.
Eliminating the notorious "which" clause of the 1954 draft, that would have required legislation to make a treaty effective as internal law, the Brickerites hope to slide the new proposal through Congress and the State legislatures with little or no friction.
All of the noxious elements in the amendment have not been eliminated, however. According to the present proposal, if a treaty conflicts with "any provision of" the Constitution, it is not of force and effect. If interpreted strictly, the "any provision of" clause could narrowly constrict treaty-making powers to those specifically stated in the Constitution, a very serious limitation in the face of an intricate world situation.
On the other hand, if the "any provision of" clause were interpreted loosely (that is, ignored) by the Courts, the proposal would become merely a truism, deserving no place as an amendment to Constitution.
The Supreme Court has repeatedly held that no treaty may be unconstitutional. For example, in Geofroy v. Riggs (1890) the Court said, "It would not be contended that (a treaty) extends so far as to authorize what the Constitution forbids." In addition, the President, by his oath of office, is sworn to enforce and uphold the Constitution. This certainly pertains to treaty-making. A mere statement that treaties should be in accord with the Constitution does not, therefore, warrant a constitutional amendment.
The supporters of the new proposal must surely realize this. They must also realize that such an amendment, through an obstructionist interpretation, could become an embarrassing and serious impediment to the Executive's treaty-making powers. In this way, the Brickerites hope to accomplish what the 1954 draft attempted to do: to subject executive foreign dealings to increased review and restraint.
But the amendment would be more of a hindrance than a safeguard. It could be interpreted as encouraging test cases on all foreign dealings. As long as the possibility of judicial guillotine hangs over all treaties, neither this country nor foreign parties can conclude agreements with any great degree of confidence or certainty. In addition, encouragement of test cases would have immense nuisance value for determined domestic agitators and subversives. The vagueness and seeming innocuousness of the proposed amendment leaves it open to obstructive and dangerous interpretation.
Since its face value is nil, and its implied usefulness is negative, the proposal should be sent the way of its predecessor. Those people who militate for curtailment of the Executive's power to conduct foreign relations must not be allowed to sow their seeds under the guise of a general and deceptively innocent constitutional amendment.