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A Deliberate Step. Advocates of the Bricker Resolution argue that such broad interpretations of the treaty power as Missouri v. Holland go beyond what the Constitution's authors intended—and can do untold damage in fields far more important than bird legislation. But history indicates that the authors of the Constitution knew what they were doing and had good reasons for doing it. The Articles of Confederation had foundered largely because the national government had no power to make the states observe treaties. The 1783 peace treaty with Great Britain provided that property rights of Britons and loyalists would be respected in the U.S., but several American states passed property laws grossly discriminating against loyalists. Said Virginia's James Madison at the Constitutional Convention in Philadelphia in 1787: "The necessity of some adequate mode of preventing the states in their individual characters from defeating the constitutional authority of the states in their united character . . . had been decided by a past experience."
So, while preserving the federal structure of the Union and carefully limiting the powers of Congress in domestic legislation, the men of 1787 deliberately made "the states in their united character," i.e., the Federal Government, entirely sovereign in dealing with foreign nations—the laws and reserved powers of the states notwithstanding. In doing that, the framers gave the Federal Government an immense power.
In the 166 years since 1787, virtually the only limit put upon the treaty power by the Supreme Court is that a treaty may not "authorize what the Constitution forbids." Even that limitation has been questioned. A circuit court of appeals declared: "It is doubtful if the courts have power to declare the plain terms of a treaty void and unenforceable."
In April 1952, before he knew he was going to be the next Secretary of State, Lawyer John Foster Dulles said in a speech: "The treatymaking power is an extraordinary power liable to abuse. Treaties make international law, and also they make domestic law ... They are, indeed, more supreme than ordinary laws. [They] can override the Constitution . . . cut across the rights given to the people by their constitutional Bill of Rights." This passage was taken as a Dulles endorsement of the American Bar Association's move to change the Constitution by limiting the treaty power.
A year later, testifying against the Bricker Amendment, Secretary Dulles said that though the treaty power was indeed "liable to abuse," it had not in fact been abused. The U.S. has made some unwise arrangements with foreign countries, but the Government's power to make domestic law by treaty has not led to grave oppression or any obvious violations of the Bill of Rights.
How the Fight Arose. Why, then, are constitutional provisions written in 1787 and left untouched until now suddenly under attack? Because recent years have seen what Secretary Dulles called a "trend toward trying to use the treatymaking power to effect internal social changes." Example: a Truman-appointed committee suggested in 1947 that certain provisions of the United Nations Charter gave the Federal Government power to enact "civil rights" legislation which could not have been enacted before the charter was signed.