"One of the greatest constitutional crises the country has ever faced," said the American Bar Association, and argued that the Bricker Amendment should be passed to protect the Union from dire peril.
"The most momentous constitutional issue since President Roosevelt's attempt to pack the Supreme Court," said the Washington Post, and argued that the Bricker Amendment should be defeated to protect the Union from dire peril.
This week the U.S., quietly and in measured tones, is in the midst of a constitutional great debate. Ohio's junior Senator, Republican John William Bricker, touched it off by proposing a constitutional amendment. Its main aim: to restrict the making of U.S. domestic law by international treaty. Earnest Lawyer Bricker argues that his amendment would plug "a dangerous constitutional loophole." Members of President Eisenhower's Cabinet argue that it would "damage [the] balance of power" between Congress and the President and "completely hamstring" the conduct of foreign relations, and Wisconsin's Senator Alexander Wiley calls the amendment "the most dangerous thing that has ever been brought before Congress." But 44 other Republican Senators (and 19 Democratic Senators) agreed to cosponsor the Bricker Amendment. Several state bar associations have endorsed it, but the New York State Bar Association denounces it as "unnecessary, unwise, divisive and dangerous."
The Supreme Law. The debate turns on a clause (Article VI, Clause 2) in the U.S. Constitution that makes treaties—along with federal laws and the Constitution itself—"the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Laws must be made "in pursuance" of the Constitution, but treaties need only be made "under the Authority of the United States," i.e., by the President, "by and with the Advice and Consent of the Senate . . . provided two-thirds of the Senators present concur." Thus treaty provisions can, without legislation, become internal law, enforceable on individual citizens and overriding conflicting laws, both state and federal. If a treaty provision is not enforceable as it stands, Congress has the power under Article I to make "necessary and proper" laws to put it into effect.
As interpreted by the Supreme Court, Article VI means that treaty provisions, or "necessary and proper" laws based on the treaties, can regulate matters that the Constitution otherwise reserves to the states and the people. After federal courts had declared a 1913 migratory-bird protection law invalid on the ground that it violated the Tenth Amendment ("The powers not delegated ... are reserved . . ."), the U.S. and Canada agreed by treaty to protect birds that flew between the two countries. Then Congress passed a law similar to the 1913 law. In 1920, in the famous Missouri v. Holland decision, the Supreme Court upheld the statute, ruling in effect that the Federal Government can derive from treaties legislative powers not specifically granted by the Constitution.