Section 17
Amendment by Treaty
Peter Suber, Paradox of Self-Amendment Table of Contents

A. The treaty power v. the amending power

The supremacy clause of the constitution, Article VI, §2, makes the federal constitution, federal statutes, and "all treaties made, or which shall be made, under the authority of the United States," the "supreme law of the land...anything in the constitution of laws of any State to the contrary notwithstanding." The clause clearly makes treaties superior to state statutes, even to state constitutions. Baldwin v. Franks, 120 U.S. 678 (1887), Wyers v. Arnold, 347 Mo. 413, 147 S.W. 2d 644, 134 A.L.R. 876 (1941), cert. den. 313 U.S. 589.

But despite the supremacy clause there are exceptions, e.g. for state laws in exercise of the state police power, Lukich v. Dept. of Labor and Industries, 176 Wash. 221, 29 P.2d 388 (1934), state laws granting the right to administer an estate, Re Chaoussis' Estate, 139 Wash. 479, 247 P. 732 (1926), and generally for state laws that do not discriminate against aliens and whose reasonable requirements demand priority to treaties, Todok v. Union State Bank, 281 U.S. 499 (1930). The relation of treaties to state law is regulated by the supremacy clause; if it is complex, then we will not be surprised to discover that the relations of treaties to their co-supreme rules, federal statutory and constitutional rules, is even more complex.

In one sense treaties and federal statutes are on a par, for when they conflict, the most recent prevails, whether it is a treaty or a statute. Cook v. U.S., 288 U.S. 102 (1933). This implies that Congress can nullify a treaty by making a statute. Lem Moon Sing v. U.S., 158 U.S. 538 (1895). But whether courts can nullify treaties as they nullify statutes, for conflicting with the constitution, is not as clear (see below). Although federal statutes and regulations are on a par for many purposes, treaties always prevail over regulations. Shizuko Kumanomido v. Nagle, 40 F.2d 42 (CA.9 1930).[Note 1]

But it is the relation of treaties to constitutional rules that is most intriguing. The supremacy clause was almost certainly intended to make the federal constitution, statutes, and treaties superior to state law without asserting either their equality or subordination to one another. Hence it is not clear from the constitution alone whether treaties are higher, lower, or co-supreme with the constitution. Because federal statutes are clearly lower than the constitution, literal co-supremacy for all three types of law has not been read into the clause. The courts are left, then, to decide whether in a standoff between a provision and a conflicting treaty, the constitution is impliedly amended pro tanto by the treaty, or the treaty is impliedly amended (or suspended) pro tanto by the constitution.

We may see the situation as a special case of an attempted amendment of an entrenched rule. Does the attempted amendment amend or violate the entrenched rule? In the present case, the federal constitution is "self-entrenched" by the supremacy clause and custom, but in neither case so clearly that treaties are put in an inferior class from which attempted amendments must be interpreted as violations.[Note 2]

If treaties can amend the constitution, then the federal AC can be amended by treaty. Whether that has occurred would be worth knowing, certainly, but at best it could not be genuine self-amendment. For treaties are not made under the AC, but under the treaty-making clause (Article II, §2). However, an amendment of the AC by treaty could represent a limitation on internal sovereignty by external sovereignty, or of the rules constituting supremacy within the legal system by the rules constituting autonomy among the systems of the world.[Note 3]

Strict self-amendment could occur if the rule of change represented by the power of treaties to amend the constitution (supposing it exists in our legal system) were self-applied. Almost certainly, this has never happened. But it is not impossible to imagine a treaty that limited the effect of future treaties on domestic law, especially on the federal constitution. Indeed, in different degrees this is not at all unusual. Article II of the Charter of the United Nations prevents the Charter's application to a nation's domestic law (but does not bar such application by other treaties). Article 46 of the Vienna Convention on the Law of Treaties (the "treaty of treaties") governs all treaties made after its own ratification (excepting only those that except themselves) and does not allow a violation of domestic law to prevent the effectiveness of an act of treaty ratification unless the violation is a "manifest" violation of a domestic "law of fundamental importance". If treaties could amend our constitution at all, then Article 46 of the Vienna Convention would limit that power for certain small class of treaties —those conflicting with the constitution that were ratified in violation of the constitution. But even that small limitation would not constitute the strict self-amendment of the power of treaties to amend the constitution unless the Vienna Convention were itself ratified under that power rather than, say, under the ordinary treaty-making power.

More likely than a treaty that bars the effect of treaties on domestic constitutions is a domestic constitutional barrier to such effects. We have a good example from American history in the proposed Bricker amendment to the constitution. The Bricker amendment would have prevented treaties and executive agreements from amending the constitution, at least in a few basic ways. Because it would have limited the means by which the constitution could be amended, although not the means specified in the AC, it may arguably itself, if adopted, have been an example of self-amendment.[Note 4] More precisely, however, it would have been the amendment of an unofficial method of amendment by an official method.

There is no clear-cut case in American history of a treaty amending the constitution. Treaties that might be read to conflict with the constitution might be "reconciled" with it by a judicial opinion that could amount to amendment by reinterpretation.[Note 5] This may have happened with the Migratory Birds Treaty with Great Britain (discussed below). Or treaties that might be read to conflict with the constitution might be enforced domestically without the question of amendment arising or without the question reaching adjudication on the merits. For example, a 1924 treaty with Great Britain allowed British Cunard Lines to bring liquor into American ports. The treaty was challenged for violating Prohibition, but the suit was dismissed because the plaintiff lacked standing. Milliken v. Stone, 16 F.2d 981 (CA.2 1927).[Note 6]

But while there is no clear-cut case, there are many rumblings that the power may exist. When President Truman ordered his Secretary of Commerce to seize many of the nation's steel mills in World War II, the Supreme Court held his act to be an unconstitutional extension of executive authority. Three dissenters, however, led by Chief Justice Vinson, found Truman's order not only justified, but constitutional, under the Charter of the United Nations and the North Atlantic Treaty. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 668, 669 (1952).

Truman did not, as far as we know, act under the belief that international agreements authorized him to seize private property in the United States in a way that otherwise violated the constitution. But in the area of civil rights he deliberately tried to use the U.N. Charter to affect domestic law. When Congress proved reluctant to pass his civil rights program, Truman's Committee on Civil Rights tried to bypass Congress by having Truman's program incorporated into the U.N. Charter. In 1952 his Committee made such a proposal to the U.N.'s Human Rights Committee.[Note 7] At least this episode reflects the belief of the Truman administration that the U.N. Charter could establish civil liberties at the level of federal statutes, if not at the level of the constitution.

Others believed this too, from conservatives who feared that the United States could be turned socialist by the U.N.[Note 8] to liberals who hoped with Truman's Committee on Civil Rights that the U.N. could adopt meaningful (and self-executing) civil rights legislation faster than our dawdling Congress.[Note 9] Article II of the U.N. Charter (as noted) said that nothing in the Charter "shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state." But as Moses Moskowitz has pointed out,[Note 10]

Perhaps the correct position would be that once a matter has become, in one way or another, the subject of regulation by the United Nations, be it by resolution of the General Assembly or by convention between member states at the instance of the United Nations, that subject ceases to be a matter 'essentially within the domestic jurisdiction of the Member States.'

Such views gave ample grounds for the hope and fear that the constitution could be amended by international agreements.

In February of 1952 the Section of International and Comparative Law of the American Bar Association reported to the House of Delegates that treaties could, under certain circumstances, deprive Americans of rights guaranteed by the constitution.[Note 11]

So far as the requirement of indictment by grand jury and trial by jury are concerned, these apply only to trials in the federal courts, and can have no application to an international court set up by a group of nations in the exercise of their treaty-making power....[T]here is no reason why such courts may not be created in the exercise of the treaty-making power.

Supreme Court pronouncements have been ambiguous and inconsistent on the relative ranks of the constitution and treaties. In Doe v. Braden, 57 U.S. 635 (1853) the Court clearly said that the constitution was superior to treaties. When a treaty is properly adopted, then "the courts of justice have no right to annul or disregard any of its provisions, unless [the terms of the treaty] violate the Constitution of the United States." But only four years later it held that courts could not nullify treaties, even if they were inconsistent with the constitution. Fellow v. Blacksmith, 60 U.S. 366 (1857). By 1890 the treaty power was again under control:

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 government or of its departments, and those arising from the nature of 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....

Geofroy v. Riggs, 133 U.S. 258, 267 (1890); cf. Downes v. Bidwell, 182 U.S. 244 (1901), Reid v. Covert, 354 U.S. 1, 16 (1957). The continuing uncertainty of the relation between treaties and the constitution is well illustrated by U.S. v. Minnesota, 270 U.S. 181, 208 (1926) in which Justice Van Devanter summarized the history of the Supreme Court's position as that treaties are "generally...regarded as on much the same plane as acts of Congress, and are usually subject to the general limitations of the Constitution."[Note 12]

In Milliken a treaty seemed to authorize what the Eighteenth Amendment (Prohibition) forbade, and in Fellow an apparent conflict between treaty and constitution was decided de facto in favor of the treaty. In both cases the treaty survived because judicial review failed or withdrew, not because any court positively affirmed the priority of the treaty. The most striking case of a treaty seeming to violate or amend the constitution, followed by an affirmative pronouncement of the Supreme Court, is Missouri v. Holland, 252 U.S. 416 (1920). In an earlier case a federal statute protecting migratory birds was struck down as unconstitutional for not falling under any of Congress's enumerated powers. U.S. v. Shauver, 214 F. 154 (E.D. Ark. 1914). The United States then (1918) entered into a treaty with Great Britain to protect migratory birds in substantially the same way as the recently voided federal statute. Congress enacted legislation that implemented the treaty domestically.[Note 13] Not surprisingly, this implementing legislation was soon attacked for attempting to do what a court had recently declared it unconstitutional for Congress to do. The precise complaint was that the enabling legislation violated the reserved powers of the State of Missouri under the Tenth Amendment. In Missouri the Supreme Court upheld the federal implementing legislation.

This certainly looks like, and was widely perceived as, a case of an unconstitutional statute becoming constitutional solely because a treaty intervened to authorize it. As such it appeared to be a case of a treaty overriding or superseding the constitution, and amending it to the extent necessary to validate the implementing legislation.

But Justice Holmes did not find the implementing legislation to be constitutional solely because it was authorized by the treaty. Primarily, he held, the implementing legislation was authorized by the "necessary and proper" clause (Article I, §8.18). This implies that the lower court erred in striking down the original statute, which Holmes never asserts. On the contrary, he suggests that the original legislation did exceed the enumerated powers of Congress, but that a treaty on the same subject may be valid under the treaty-making clause (Article II, §2), which could then justify implementing legislation.

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.

Id. at 433. That is an accurate paraphrase of the supremacy clause (Article VI, §2), but in context Holmes made it suggest that treaties need not be consistent with the constitution provided they are "made under the authority of the United States" —which under Article II, §2, means to be made by the President with the concurrence of two-thirds of the Senate. It was this hint of the possibility of constitutional amendment or supersession by unilateral action of the President and the Senate that prompted the Bricker amendment 30 years later in 1953, to overturn Missouri, and to limit the effects of treaties and executive agreements.

B. The Bricker amendment

Executive agreements were even more worrisome than treaties in this respect, for they are unilateral acts of the President, without even the concurrence of the Senate. The constitution makes no provision for them, yet they have been held to supersede state law. U.S. v. Pink, 315 U.S. 203 (1942). In practice, executive agreements have virtually the same full range of contents as treaties. They have multiplied as both a cause and effect of the growing ambitions of the Executive over the last half century.

Bricker's actual language prohibited the abridgment of the rights of American citizens by treaty (Sec. 1), prohibited the vesting of governmental powers in foreign or international bodies (Sec. 2), and prohibited the alteration or abridgment of federal laws, or of state laws and constitutions (suggesting a deliberate omission of the federal constitution) by treaty without the express action of Congress (Sec. 3). The other sections provided similar restrictions on executive agreements, provided Congress with power to enforce the amendment by appropriate legislation, and set a ratification deadline of seven years.[Note 14] Nothing in the amendment explicitly made the federal constitution superior to treaties or immune to amendment by treaty, except for those provisions of the constitution that allocate governmental powers and protect fundamental rights. Whether this omission should be blamed on poor draftsmanship or Senate bargaining is uncertain, for Bricker had more explicit and comprehensive language at his disposal that he chose not to use. The American Bar Association Committee on Peace and Law Through the United Nations drafted the following language, which the House of Delegates approved and which Bricker is known to have studied:[Note 15]

Section 1. A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.

Language remarkably similar to this A.B.A. draft was proposed by North Carolina 165 years earlier. When other states were demanding a Bill of Rights in the federal constitution, North Carolina demanded an amendment that would say[Note 16]

...nor shall any treaty be valid which is contradictory to the Constitution of the United States.

Scatterfield reports that Bricker was joined by 61 Senators in sponsoring his amendment; Chafee puts the number at "about 55".[Note 17] In any event a majority of Senators supported it, yet it did not pass the Congress to be submitted to the states. The strongest arguments against it were that it was unnecessary because treaties were already inferior to the constitution, a proposition many had reason to doubt, and that it would delay implementation and even ratification of treaties while Congress and the courts deliberated their merits.[Note 18] The Bricker amendment was, then, not only a potential example of self-amendment, but a case of Congress refusing to make determinate the indeterminate edges of one of the co-supreme powers of our legal system.

Notes

1. Virtually all these rules are modified by the temporary suspension of a treaty while the United States is at war with the other signatories. Meier v. Schmidt, 150 Neb. 383, 34 N.W.2d 400 (1948). [Resume]

2. These topics were discussed more thoroughly in Section 9.C. My final resolution of the problem lies in the concept of a completely, but contingently, reflexive hierarchy, for which see Section 21.D. [Resume]

3. See Ilmar Tammelo, "The Antinomy of Parliamentary Sovereignty," Archiv für Rechts- und Sozialphilosophie, 44 (1958) 495-513, at pp. 509-10; W.J. Rees, "The Theory of Sovereignty Restated," Mind, 59 (1950) 495-521, at pp. 519f; Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, at p. 141. The relation between our supreme law and the external world order is well presented by George Grafton Wilson, "International Law and the Constitution," Boston University Law Review, 13 (1923) 234-60, 462-99. [Resume]

4. This presupposes that at the time the Bricker amendment was proposed, treaties clearly could amend the constitution. John C. Scatterfield argued that treaties could do so, "Constitutional Amendment by Treaty and Executive Agreement," Mississippi Law Journal, 24 (1953) 280-94. Zechariah Chafee argued that treaties could not do so, "Amending the Constitution to Cripple Treaties," Louisiana Law Review, 12 (1952) 345-82. For other voices pro and con see note 18 below. It is possible that both sides were wrong, and that the effect of treaties on the constitution falls into what Hart would call "open texture" —the uncertain fringe of determinate rules, where alternatives are left open by the generality of language or the paucity and ambiguity of preexisting authority. See H.L.A. Hart, The Concept of Law, Oxford University Press, 1961, at pp. 124ff. [Resume]

5. On amendment by reinterpretation, see Section 13. See also Note, "Judicial Review and the Growth of the Treaty Power," Syracuse Law Review, 3 (1952) 315-33. [Resume]

6. Chafee does not believe this is a case of a treaty violating or amending the constitution, but he says it is the closest case he has seen. Chafee, op. cit., at p. 354. [Resume]

7. See Scatterfield, op. cit., at pp. 283-287. [Resume]

8. See the testimony of Frank E. Holman, one-time President of the American Bar Association, before a Senate subcommittee of the Judiciary Committee, considering the Bricker Amendment, February 18, 1953, quoted in Scatterfield, op. cit., at p. 287. Holman testified that a treaty could "change our form of government from a republic to a socialistic and completely centralized state;...put us in to a World Government...[and] increase the power of the Federal Government at the expense of the States." For some of Holman's voluminous writings in defense of the Bricker amendment, see note 18, below. [Resume]

9. These hopes and fears were temporarily confirmed when the California Court of Appeals held that the U.N. Charter was self-executing (not in need of implementing legislation to apply domestically) and required the nullification of the California Alien Land Law. Fujii v. California, 217 P.2d 481, 218 P.2d 595 (Cal.App. 1950). Fujii was later overruled by the California Supreme Court, 38 Cal. 718, 242 P.2d 617 (1952), but the California Alien Land Law was held void under the Fourteenth Amendment. See Note, "United Nations Charter —Its Application As A Treaty to State Law," Boston University Law Review, 30 (1950) 555-61.

Also see Arthur Hobson Dean, Amending the Treaty Power, Chicago: American Bar Association, 1954 (pamphlet), at Appendix 1, p. ii, where he tells his southern audience, without the certainty he would like, that no treaty could abolish segregation in the United States. The dismal uncertainty of this for Dean, however, is offset by the unlikelihood that the United States would ever sign the Genocide Convention, circulated since the end of World War II, a treaty that would constitutute a "threat to our liberties". [Resume]

10. Moses Moskowitz, "Is the U.N.'s Bill of Human Rights Dangerous?" American Bar Association Journal, 38 (1949) 283, at 285; quoted in Scatterfield, op. cit. at p. 282. [Resume]

11. Scatterfield, op. cit., at p. 287. [Resume]

12. Emphases added. [Resume]

13. The original, unconstitutional statute was 37 Stat. 847 (1913). The implementing legislation was the Migratory Bird Treaty Act of July 3, 1918, 16 U.S.C. §§703-711. [Resume]

14. S.J.R. 1, 83rd Congress, 1st Session; 99 Cong. Rec. 6777 (1953). [Resume]

15. Scatterfield, op. cit., at p. 288; Chafee, op. cit., at p. 350. Section 2 of the A.B.A. proposal is omitted in the text; it merely subjected executive agreements to regulation by Congress and to the same limitations that Section 1 provided for treaties. [Resume]

16. See Dean, op. cit., at p. 9. [Resume]

17. Scatterfield, op. cit., at p. 288; Chafee, op. cit., at p. 350. [Resume]

18. See Chafee, op. cit. passim, but esp. pp. 354ff. Some of the other leading essays in opposition to the Bricker amendment include (in roughly chronological order) Zechariah Chafee, "Stop Being Terrified of Treaties; Stop Being Scared of the Constitution," American Bar Association Journal, 38 (1952) 731-34; Note, "Danger in the Treaty-Making Power —A Mirage," Temple University Law Quarterly, 25 (1952) 463-71; S.W. Jackson, "Treaty Powers Amendment Unnecessary," Journal of the Bar Association of Kansas, 22 (1953) 74-77, another article of same title, by M.G. Boss, ibid. 108-11; M.H. Merrill, "Treaty-Law —What is Bad About It?" Oklahoma Bar Association Journal, 24 (1953) 454-85; T. Pearson and D.C. Backus, "Save the Peace Power: Don't Strait-Jacket Treaties," American Bar Association Journal, 39 (1953) 804-08; B. MacChesney, "The Fallacies in the Case for the Bricker Amendment," Notre Dame Lawyer, 29 (1954) 529-82; Note, "Treaty-Making Power Is Not A Peril," Clev-Mar Law Review, 3 (1954) 74-84; Note, "Continued Defense of the Constitution Against the Bricker Proposals," Record of the Ass. of the Bar of New York City, 10 (1955) 114-42; and J.B. White and J.E. Fowler, "Bricker Amendment —Fallacies and Dangers," American Journal of International Law, 48 (1954) 23-56.

Some of the leading essays in support of the Bricker amendment include (in roughly chronological order) F.E. Holman, "Treaty Law-Making," American Bar Association Journal, 36 (1950) 707-10, 787; E.P. Deutsch, "The Peril in the Treaty-Making Clause," American Bar Association Journal, 37 (1951) 659; J.W. Bricker, "Amending the Treaty-Making Power: Pro and Con. Safeguarding the Treaty Power," Federal Bar Journal, 13 (1952) 77-98; F.E. Holman, "Treaty Law —A Threat to American Rights," Journal of the Bar Ass. of Kansas, 20 (1952) 253-63; E.P. Deutsch, "Legislation By Treaty," Michigan State Bar Journal, 31 (1952) 19-25; G.A. Finch, "Treaty-Clause Amendment: The Case for the Association," American Bar Association Journal, 38 (1952) 467-70, 527-30; E.P. Deutsch, "Need for a Treaty Amendment, Restatement and Reply," American Bar Association Journal, 38 (1952) 735-38, 793-96; E.P. Deutsch, "Proposed Changes in the United States Treaty-Making Power," Louisiana Bar Journal, 1 (1953) 3-11; E.P. Deutsch, G.A. Finch, J.L. Call, H.C. Dillard, and Q. Wright, "Should the Constitution Be Amended to Limit the Treaty-Making Power?" Southern California Law Review, 26 (1953) 347-95; V. Hatch, "Treaty-Making Power: 'An Extraordinary Power Liable to Abuse'," American Bar Association Journal, 39 (1953) 853-55; F.E. Holman, "Greatest Threat to American Freedom," Wyoming Law Journal, 8 (1953) 24-38; F.E. Holman, "Treaty Law and the Constitution," Oklahoma Bar Association Journal, 24 (1953) 1333-48; Note, "Case for the Bricker Amendment," Georgia Law Journal, 42 (1954) 262-89; Arthur Hobson Dean, "Amending the Treaty Power," Stanford Law Review, 6 (1954) 589-612; G.A. Finch, "Need to Restrain the Treaty-Making power of the United States Within Constitutional Limits," American Journal of International Law, 48 (1954) 57-82; O.L. Phillips, "Treaty-Making Power —A Real and Present Danger," Montana Law Review, 15 (1954) 1-14; and J.W. Bricker and C.A. Welch, "Bricker Amendment: Pro and Con. Treaty Law v. Domestic Constitutional Law," Notre Dame Lawyer, 29 (1954) 529-82. [Resume]

This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.

[Blue Ribbon] Peter Suber, Department of Philosophy, Earlham College, Richmond, Indiana, 47374, U.S.A.
peters@earlham.edu. Copyright © 1990, Peter Suber.