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. 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.
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.”
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. 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. 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.
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. 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.” Significantly, Bricker cited the Fujii case as evidence of the ominous potential of UN authority over American domestic policy.
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.” 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.
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.”
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. 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.”
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.”
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.
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. 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.
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.”
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.
4. The fears of strict constructionists over the implications of this crucial case are reflected in the very title of Forrest Black, “Missouri v. Holland—a Judicial Milepost on the Road to Absolutism,” Illinois Law Review 25 (1931): 911-28.
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.