Senator John W. Bricker, the sponsor of the proposed constitutional amendment to limit the "treaty power" of the United States
government
The Bricker Amendment is the collective name of a series of proposed amendments to the United
States Constitution considered by the United States Senate in the 1950s.
These amendments would have placed restrictions on the scope and ratification of treaties and
executive agreements entered into by the United States and are named for their sponsor, Senator John W.
Bricker of Ohio, a conservative Republican.
Isolationism, the view that the United States should not become embroiled in foreign
conflicts and world politics, has always been an element in American politics but was especially strong in the years following
World War I. American entry into World War II
temporarily suppressed isolationist sentiments, but they returned in the post-war years in response to America's new
international role, particularly as a reaction to the new United Nations and its
affiliated international organizations. Some feared the loss of American
sovereignty to these transnational agencies, because of the Soviet Union's role in the spread of international Communism and the
Cold War.
Frank E. Holman, president of the American
Bar Association (ABA), called attention to state and Federal court decisions, notably Missouri v.
Holland, which he claimed could give international treaties and agreements precedence over the United States
Constitution and could be used by foreigners to threaten American liberties. Senator Bricker was influenced by the ABA's work and
first introduced a constitutional amendment in 1951. With
substantial popular support and the election of a Republican President
and Congress in the elections of 1952, Bricker's plan seemed destined to be sent
to the individual states for ratification. The best-known
version of the Bricker Amendment, considered by the Senate in 1953–54, declared that no treaty could be made by the United States
that conflicted with the Constitution, was self-executing without the passage of separate enabling legislation through Congress,
or which granted Congress legislative powers beyond those specified in the Constitution. It also limited the president's power to
enter into executive agreements with foreign powers.
Bricker's proposal attracted broad bipartisan support and was a focal point of
intra-party conflict between the administration of president Dwight D. Eisenhower
and the Old Right faction of conservative Republican senators. Despite the
initial support, the Bricker Amendment was blocked through the intervention of President Eisenhower and failed in the Senate by a
single vote in 1954. Three years later the United States Supreme
Court explicitly ruled in Reid v. Covert that the Bill of Rights cannot be abrogated by
agreements with foreign powers and that such agreements cannot extend the powers of Congress beyond those permitted by the
Constitution.[1] Nevertheless, Senator Bricker's ideas
still have supporters, and new versions of his amendment have been reintroduced in Congress periodically.
Historical background
-
American isolationism
The Bricker Amendment controversy grew from the strong vein of isolationism,
nationalism, and suspicion of foreign influences that has existed from the beginnings of the
American republic. "Isolationism was the considered response to foreign and domestic
developments of a large, responsible, and respectable segment of the American people," wrote one historian of the
movement.[2] The pre-Revolutionary cry of "no taxation without
representation!" spoke to the inability of Americans to participate in how they would be governed, a state made clear when
British authorities suppressed local government in colonies accustomed to home rule, e.g. Massachusetts.[3]
The first President, George
Washington, warned his countrymen "to steer clear of permanent alliances with any portion of the foreign world."[4] Under John Adams, his
successor, the United States attempted to avoid the conflict between
France and Britain, and passed the Alien and Sedition
Acts of 1798 to control foreign citizens.[5] In his
inaugural address, President Thomas Jefferson declared that one of "the essential
principles of our Government" was "peace, commerce, and honest friendship with all nations, entangling alliances with
none."[6] President James
Monroe's doctrine (1823) announced the primacy of American influence in the
Western Hemisphere.[7]
In the 20th century, America was initially neutral in World War I and avoided entering
the conflict for three years. President Woodrow Wilson, a Democrat, won reelection in 1916 with the slogan "he kept us out of war," although he subsequently led the
U.S. into the conflict. Once hostilities were concluded, Republican Senators William E.
Borah of Idaho and Henry Cabot Lodge of
Massachusetts led like-minded colleagues in the United States Senate to reject the Treaty of
Versailles (1919) and to avoid joining both international agencies created by it, the League of Nations and the World
Court, for fear of losing American sovereignty.[8]
This fear of foreign control was long associated with anti-Catholicism and
attendant allegations of Catholic dual loyalty to their country and the Pope, stemming from America's British Protestant roots. As late as the 1960 presidential election, in which
President John F. Kennedy became America's first Catholic chief executive, there were
Americans who believed Catholics' first loyalty would be to the Pope and not the United States.[9] Previous concerns about "foreign influence" led to restrictive laws such as the
Chinese Exclusion Act of 1882, the Johnson-Reed Act of 1924, the Smith Act of 1940, and numerous
state laws restricting foreigners from engaging in business or owning land. Similarly, America long maintained a protectionist trade policy with high tariffs on foreign products, notably the Hawley-Smoot Tarriff of
1930.
In the 1930s, legislators of both parties opposed American involvement in the conflicts in Asia
and Europe. Between 1934 and 1936, Senator Gerald P. Nye held
dramatic hearings attempting to show that America was forced into World War I by an
alliance of arms merchants, bankers, and foreign influences.[10] In response, Congress passed, and President
Franklin D. Roosevelt signed, Senator Nye's Neutrality Act of 1935 to preclude American involvement in another European war.
Several times after the conclusion of World War I, constitutional amendments were
proposed in Congress to require a nationwide referendum on declaring war.[11] When President Roosevelt in 1937 proposed a "quarantine" of aggressing nations such as
Japan, he found little support, remarking "It's a terrible thing to look over your
shoulder when you are trying to lead—and find no one there."[12] The America First Committee, formed in 1940 to
keep the United States out of World War II, included Americans across the political
spectrum from socialist Norman M. Thomas, journalist John
T. Flynn of The New Republic, and Senator Burton K. Wheeler of Montana on the left to Chicago Tribune publisher Colonel Robert R. McCormick,
Sears, Roebuck chairman General Robert E.
Wood, and Senator Nye on the right.[13] Prior to
America's entry into World War II, President Roosevelt proposed helping the United
Kingdom against Nazi Germany; in response, Senator Wheeler famously declared "the
lend-lease-give program is the New Deal's triple-A foreign policy; it will plow under every fourth American boy."[14] Senator Wheeler was even thought to have leaked the United States's
Rainbow 5 War plan
Orange for use against Japan only days before the attack on Pearl Harbor on December 7 1941.[15] Typical of American sentiment was
the title of an anti-interventionist book, Why Meddle in Europe?[16] Even Bainbridge Colby, Secretary of State under Woodrow Wilson,
testified to the Senate Foreign Relations Committee
in 1939 that entering World War I had been a mistake and the United States would have been
better off even if Germany had won that conflict.[17]
Fears return after World War II
Flag of the United Nations. Many Americans were fearful in the 1940s that the
United
Nations could interfere in the country's internal affairs.
The attack on Pearl Harbor temporarily silenced American isolationism; the
America First Committee disbanded within days.[18] However, in the final days of World War II, isolationism began its resurgence —
isolationists had spoken against ratification of the United Nations Charter but
were unsuccessful in preventing the United States from becoming a founding member of the United
Nations.[19] Suspicions of the U.N. and its
associated international organizations were fanned by conservatives, most
notably by Frank E. Holman, an attorney from Seattle, Washington in what has been called a "crusade."[20]
Holman, a Utah native and Rhodes scholar,
was elected president of the American Bar Association in 1947 and dedicated his
term as president to warning Americans of the dangers of "treaty law."[21] While Article II of the United Nations Charter
stated "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state," an international analogue to the Tenth Amendment, Holman saw the work of the U.N. on the proposed
Genocide Convention and
Universal Declaration of Human Rights[22] and numerous proposals of the International Labor Organization, a body created under the League of Nations, as being far outside the UN's powers and an invasion against American
liberties.[23]
Holman cautioned the Genocide
Convention would subject Americans to the jurisdiction of foreign courts with unfamiliar procedures and without the protections
afforded under the Bill of Rights. He said the Convention's language was
sweeping and vague and offered a scenario where a white motorist who struck and killed a black child could be extradited to
The Hague on genocide charges.[24] Holman's critics claimed the language was no more sweeping or vague than the state and Federal
statutes that American courts interpreted every day. Duane Tananbaum, the leading historian of the Bricker Amendment, wrote "most
of ABA's objections to the Genocide Convention had no basis whatsoever in reality" and his example of a car accident becoming an
international incident was not possible.[25] Eisenhower's
Attorney General Herbert
Brownell called this scenario "outlandish".[26]
But Holman's hypothetical especially alarmed Southern Democrats who had gone to
great lengths to obstruct Federal action targeted at ending the Jim Crow system of
racial segregation in the American South. They feared that, if ratified, the Genocide
Convention could be used in conjunction with the Constitution's necessary-and-proper clause to pass a Federal civil
rights law (despite the conservative view that such a law would go beyond the enumerated powers of Article I, Section 8.)[27] President Eisenhower's aide Arthur Larson said Holman's
warnings were part of "all kinds of preposterous and legally lunatic scares [that] were raised," including "that the
International Court would take over our tariff and immigration controls,
and then our education, post offices, military and welfare activities."[28] In Holman's own book advancing the Bricker Amendment he wrote the U.N. Charter meant the Federal
government could:
control and regulate all education, including public and parochial schools, it could control and regulate all matters
affecting civil rights, marriage, divorce, etc; it could control all our sources of production of foods and the products of the
farms and factories; . . . it could regiment labor and conditions of employment.[29]
Legal background
The Constitution of the
United States of America granted the Federal government
control of foreign affairs.
The United States Constitution, effective in 1789, gave the
Federal government power over foreign affairs and restricted the
individual States' authority in this realm. Article I,
section ten provides, "no State shall enter into any Treaty, Alliance, or Confederation" and that "no State shall, without the
Consent of the Congress . . . enter into any Agreement or Compact with another State or with a foreign Power." The Federal
government's primacy was made clear in the supremacy clause of Article VI, which declares, "This Constitution, and the laws of the United
States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United
States, shall be the Supreme Law of the land; and the Judges in every state shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding."[30] While executive agreements were
not mentioned in the Constitution, Congress authorized them for delivery of the mail as early as 1792.[31]
Early precedents
Constitutional scholars note that the supremacy clause was designed to protect the only significant treaty into which the
infant United States had entered: the Treaty of Paris of 1783, which ended the
Revolutionary War and under which Great
Britain recognized America as an independent nation.[32] Nonetheless, its wording ignited fear of the potential abuse of the treaty power from the
beginning. For example, the North Carolina ratifying convention that
approved the Constitution did so with a reservation asking for a constitutional amendment that
No treaties which shall be directly opposed to the existing laws of the United States in Congress assembled shall be valid
until such laws shall be repealed, or made conformable to such treaty; nor shall any treaty be valid which is contradictory to
the Constitution of the United States.[33]
Early legal precedents striking down State laws that conflicted with Federally-negotiated international treaties arose from
the peace treaty with Britain,[34] but subsequent
treaties were found to trump city ordinances,[35] state
laws on escheat of land owned by foreigners[36] and, in the 20th Century, state laws regarding tort claims.[37] Subsequently, in a case involving a treaty concluded with the Cherokee Indians, the Supreme Court declared "It need hardly be said that a treaty cannot change the
Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles
of our government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the
question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of
Congress may supersede a prior treaty."[38]
Likewise, in a case regarding ownership of land by foreign nationals, the Court wrote "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 the
government, or of its departments, and those arising from the nature of the 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, or a change in the character of the
government, or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent.
But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any
matter which is properly the subject of negotiation with a foreign country."[39] Justice Stephen Johnson Field, dissenting in an 1898
immigration case, wrote, "that statutes enacted by Congress, as well as treaties made by the president and senate, must yield to
the paramount and supreme law of the constitution."[40]
However, these prior statements seemed to be overruled by the Court's 1920 decision in Missouri v. Holland.
Twentieth century rulings
Missouri v. Holland
-
The precedent most often cited by critics of "treaty law" was Missouri v. Holland.[41] Congress had attempted to protect migratory
birds by statute,[42] but federal and state courts
declared the law unconstitutional.[43] The United States subsequently negotiated and ratified a treaty with Canada to achieve the same purpose,[44]
Congress then passed the Migratory Bird Treaty Act of 1918 to enforce
it.[45] In Missouri v. Holland, the
United States Supreme Court upheld the constitutionality of the new
law. Justice Oliver Wendell Holmes, writing for the Court, declared:
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. It is open to question whether the authority of the United States
means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to
the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest
exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could,
and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere
reside in every civilized government' is not to be found.[46]
Proponents of the Bricker Amendment said this language made it essential to add to the Constitution explicit limitations on
the treaty-making power. Raymond Moley wrote in 1953 that Holland meant "the
protection of an international duck takes precedence over the constitutional protections of American citizens."[47] In response, legal scholars such as Professor
Edward Samuel Corwin of Princeton
University said the language of the Constitution regarding treaties—"under the authority of the United States"—was
misunderstood by Holmes, and was written to protect the 1783 peace treaty with Britain; this became "in part the source of
Senator Bricker's agitation."[48] Professor
Zechariah Chafee, Jr., of Harvard Law
School wrote "the Framers never talked about having
treaties on the same level as the Constitution. What they did want was to make sure a state could no longer flout any lawful
action taken by the nation." "Supreme", as used in Article VI, Chafee claimed, "means simply supreme over the states."[49]
Pink and Belmont
Two additional cases frequently cited by proponents of the Amendment were both related to the Roosevelt Administration's recognition of the Soviet
government in 1933. In the course of recognizing the USSR, letters were exchanged with the Soviet Union's foreign minister,
Maxim Litvinov, to settle claims between the two countries, in an agreement neither sent
to the Senate nor ratified by it. In Belmont v. United States the constitutionality of executive agreements was tested in the Supreme Court.[50] Justice George Sutherland, writing
for the majority, upheld the power of the president, finding:
That the negotiations, acceptance of the assignment and agreements and understandings in respect thereof were within the
competence of the President may not be doubted. Governmental power over external affairs is not distributed, but is vested
exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole
organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that
term is used in the treaty making clause of the Constitution (article 2, 2), require the advice and consent of the
Senate.[51]
A second case from the Litvinov agreement, United States v. Pink, also went to the Supreme Court.[52] In Pink, the New York State Superintendent of Insurance was
ordered to turn over assets belonging to a Russian insurance company pursuant to the Litvinov assignment. The United States sued
New York to claim the money held by the Insurance Superintendent, and lost in lower courts. However, the Supreme Court held New
York was interfering with the President's exclusive power over foreign affairs, independent of any language in the Constitution—a
doctrine it enunciated in United States v. Curtiss-Wright
Export Corp.[53]—and ordered New York to pay
the money to the Federal Government. The Court declared, "the Fifth Amendment does not stand in the way of giving full force and
effect to the Litvinov Assignment"[54] and
The powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to
determine the public policy of the United States with respect to the Russian nationalization decrees. What government is to be
regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be
determined by the political department of the government. That authority is not limited to a determination of the government to
be recognized. It includes the power to determine the policy which is to govern the question of recognition. Objections to the
underlying policy as well as objections to recognition are to be addressed to the political department and not to the
courts.[55]
Rulings during Congressional debate
Unlike in Pink and Belmont, an executive agreement on potato imports from
Canada, litigated in United States v. Guy W. Capps, Inc., another oft cited case, the
courts declared an agreement unenforceable.[56] In
Capps the courts found that the agreement, which directly contradicted a statute passed by Congress, could not be
enforced.
But the dissent of Chief Justice Fred M. Vinson in Youngstown Sheet &
Tube Co. v. Sawyer (commonly referred to as the "steel seizure case") alarmed conservatives. President
Harry S. Truman had nationalized the American
steel industry to prevent a strike he claimed would
interfere with the prosecution of the Korean War. Though the United States Supreme Court found this illegal, Vinson's defense of this sweeping
exercise of executive authority was used to justify the Bricker Amendment.[57] Those warning of "treaty law" claimed that in the future, Americans could be endangered with the
use of the executive powers Vinson supported.
State precedents
Some state courts issued rulings in the 1940s and 1950s that relied on the United
Nations Charter, much to the alarm of Holman and others. In Fujii v. California, a California law restricting the
ownership of land by aliens was ruled by a state appeals court to be a
violation of the U.N. Charter.[58] In Fujii, the
Court declared "The Charter has become 'the supreme Law of the Land . . . any Thing in the Constitution of Laws of any State to
the Contrary notwithstanding.' The position of this country in the family of nations forbids trafficking innocuous generalities
but demands that every State in the Union accept and act upon the Charter according to its plain language and its unmistakable
purpose and intent."[59] However, the California Supreme Court overruled, declaring that while the Charter was "entitled to
respectful consideration by the courts and Legislatures of every member nation," it was "not intended to supersede existing
domestic legislation."[60] Similarly, a New York trial
court refused to consider the U.N. Charter in an effort to strike down racially restrictive covenants in housing, declaring
"these treaties have nothing to do with domestic matters," citing Article 2, Section 7 of the Charter.[61] In another covenant case, the Michigan
Supreme Court discounted efforts to use the Charter, saying "these pronouncements are merely indicative of a desirable
social trend and an objective devoutly to be desired by all well-thinking peoples."[62] These words were quoted with approval by the Iowa Supreme Court in overturning a lower court decision that relied on the Charter, noting the
Charter's principles "do not have the force or effect of superseding our laws."[63]
Internationalization and the United Nations
Following the Second World War, various treaties were proposed under the aegis of the
United Nations, in the spirit of collective security and internationalism that
followed the global conflict of the preceding years. In particular, the Genocide Convention, which made a crime of "causing
serious mental harm" to "a national, ethnic, racial, or religious group" and the Universal Declaration of Human Rights, which
contained sweeping language about health care, employment, vacations, and other subjects outside the traditional scope of
treaties, were considered problematic by isolationists and advocates of limited government.[64] Historian Stephen E. Ambrose described
the suspicions of Americans: "Southern leaders feared that the U.N. commitment to human rights would imperil segregation; the
American Medical Association feared it would bring about socialized
medicine."[65] It was, the American Bar Association declared, "one of the greatest constitutional crises the country has
ever faced."[66]
Conservatives were worried that these treaties could be used to expand the power of the Federal government at the expense of
the people and the states. In a speech to the American Bar Association's
regional meeting at Louisville, Kentucky on April
11, 1952, John Foster Dulles, an American
delegate to the United Nations, said, "Treaties make international law and they also make
domestic law. Under our Constitution, treaties become the Supreme Law of the Land. They are indeed more supreme than ordinary
laws, for Congressional laws are invalid if they do not conform to the Constitution, whereas treaty laws can override the
Constitution." Dulles said the power to make treaties "is an extraordinary power liable to abuse."[67] Senator Everett McKinley Dirksen, a
Republican of Illinois, declared, "we are in a new era of international organizations. They are
grinding out treaties like so many eager beavers which will have effects on the rights of American citizens."[68] Eisenhower's Attorney
General Herbert Brownell admitted executive agreements "had sometimes been
abused in the past."[69] Frank E. Holman wrote
Secretary of State George C.
Marshall in November 1948 regarding the dangers of the Human Rights Declaration, receiving the dismissive reply that the
agreement was "merely declaratory in character" and had no legal effect.[70] The conservative ABA called for a Constitutional amendment to address what they perceived to be a
potential abuse of executive power. Holman described the threat:
More or less coincident with the organization of the United Nations a new form of internationalism arose which
undertook to enlarge the historical concept of international law and treaties to have them include and deal with the domestic
affairs and internal laws of independent nations.[71]
Senator Bricker thought the "one world" movement advocated by those such
as Wendell Willkie, Roosevelt's Republican challenger in the 1940 election, would attempt to use treaties to undermine American liberties.
Conservatives cited as evidence the statement of John P. Humphrey, the first director of the United Nations Commission on Human Rights:
What the United Nations is trying to do is revolutionary in character. Human rights are
largely a matter of [the] relationship between the State and individuals, and therefore a matter which has been traditionally
regarded as being within the domestic jurisdiction of states. What is now being proposed is, in effect, the creation of some
super national supervision of this relationship.[72]
Frank E. Holman testified before the Senate Judiciary
Committee that the Bricker Amendment was needed "to eliminate the risk that through 'treaty law' our basic American rights
may be bargained away in attempts to show our good neighborliness and to indicate to the rest of the world our spirit of
brotherhood."[73] W.L. McGrath, president of the
Williamson Heater Company in Cincinnati, Ohio, told the Senate that the
International Labor Organization, to which he had been an American
delegate, was "seeking to set itself up as a sort of international legislature to formulate socialistic laws which it hopes, by
the vehicle of treaty ratification, can essentially be imposed upon most of the countries of the world."[74]
Congress considers the proposal
President
Dwight D. Eisenhower thought the Bricker Amendment would undermine
American foreign policy and worked to defeat it.
Republican Senator John W. Bricker, an attorney, had served as governor of Ohio and was Thomas E. Dewey's running
mate in the 1944 campaign before winning a Senate seat in the
1946 Republican landslide. Author Robert A. Caro declared Senator Bricker to be "a fervent
admirer" of Senators Robert A. Taft of Ohio, "whom
he had three times backed for the presidential nomination," and Joseph R. McCarthy of
Wisconsin, "whom he would support to the last," and stated that Bricker was "a fervent hater
of foreign aid, the United Nations, and all those he lumped with Eleanor Roosevelt under the contemptuous designation of 'One Worlders'. He was the embodiment of the
GOP's reactionary Old Guard," borne out by his voting record: Americans for Democratic Action gave him a "zero" rating in 1949,[75] However, Bricker was not a doctrinaire isolationist; he had voted in
favor of the Marshall Plan and the North Atlantic
Treaty.
President Eisenhower disagreed about the necessity of the Amendment, writing in his diary in April 1953, "Senator Bricker
wants to amend the Constitution . . . By and large the logic of the case is all against Senator Bricker, but he has gotten almost
psychopathic on the subject, and a great many lawyers have taken his side of the case. This fact does not impress me very much.
Lawyers have been trained to take either side of any case and make the most intelligent and impassioned defense of their adopted
viewpoint."[76]
Historians describe the Bricker Amendment as "the high water mark of the isolationist surge in the 1950s" and "the embodiment
of the Old Guard's rage at what it viewed as twenty years of presidential usurpation of Congress's constitutional powers" which
"grew out of sentiment both anti-Democrat and anti-presidential."[77] Bricker's pressing the issue, wrote Time just before the climactic vote, was "a time-bomb
threat to both G.O.P. unity and White House-Congressional
accord."[78] Senator Bricker warned "the constitutional
power of Congress to determine American foreign policy is at stake."[79]
82nd Congress
In the 82nd Congress, Senator Bricker introduced the first version of his
amendment, S.J. Res. 102, drafted by Bricker and his staff. The American Bar
Association was still studying the issue of how to prevent an abuse of "treaty law" when Bricker introduced his resolution
on July 17, 1951, without the ABA's involvement, but the Senator
wanted to begin immediate debate on an issue he considered vital.[80] Bricker was not trying to reverse the Yalta Agreement, in
contrast to the goals of some of his conservative colleagues; he was worried most about what might be done by the
United Nations or under an executive agreement.[81] A second proposal, S.J. Res 130, was introduced by Bricker on February
7, 1952, with fifty-eight co-sponsors, including every Republican except Eugene D. Millikin of Colorado.[82]
President Harry S. Truman was adamantly opposed to limitations on executive power and
ordered every executive branch agency to report on how the Bricker Amendment would affect its work and to offer this information
to the Judiciary Committee.[83] Consequently, in its
hearings, the Committee heard from representatives of the Departments of Agriculture, Commerce, Defense,
Labor, and the Post Office, along with the Bureau of
Internal Revenue, the Securities and Exchange
Commission, and the Bureau of Narcotics.[84] Duane Tananbaum wrote the hearings "provided the amendment's supporters with a
wider forum for their argument that a constitutional amendment was needed" and gave opponents a chance to debate the
issue.[85]
Bricker's amendment was raised as an issue in his 1952 re-election campaign. Toledo
mayor Michael V. DiSalle railed that the amendment was "an unwarranted interference with
the provisions of the Constitution," but Bricker was easily elected to a second term.[86]
83rd Congress: Consideration by the new Republican majority
Bricker introduced his proposal, S.J. Res 1, on the first day of the 83rd
Congress and soon had sixty-three co-sponsors on a resolution much closer to the language of the amendment proposed by the
American Bar Association. This time, every Republican senator, including
Millikin, was a co-sponsor, as were eighteen Democrats. Including Bricker, this totaled exactly the sixty-four votes that
comprised two-thirds of the full Senate, the number necessary to approve a constitutional amendment. Companion measures were
introduced in the United States House of Representatives, but no
action was taken on them; the focus was on the Senate.
The Eisenhower Administration was caught by surprise as Sherman Adams, Eisenhower's
Chief of Staff, thought an agreement had been reached with Bricker to delay
introduction of his amendment until after the Administration had studied the issue. "Bricker hoped to force the new
administration's hand," wrote Duane Tananbaum.[87]
George E. Reedy, aide to Senate minority leader Lyndon
B. Johnson of Texas, said popular support for the measure made it "apparent from the start
that it could not be defeated on a straight-out vote. No one could vote against the Bricker Amendment with impunity and very few
could vote against it and survive at all . . . There was no hope of stopping it through direct opposition."[88] Johnson told his aide Bobby Baker it
was "the worst bill I can think of" and "it will be the bane of every president we elect."[89]
Eisenhower privately disparaged Bricker's motives, suggesting Bricker's push for the Amendment was driven by "his one hope of
achieving at least a faint immortality in American history,"[90] and considered the Amendment entirely unnecessary, telling Stephen E. Ambrose it was "an addition to the Constitution that said you could not violate the
Constitution."[91]
Eisenhower seeks delay
Eisenhower publicly stated his opposition in his press conference of March 26,
1953: "The Bricker Amendment, as analyzed for me by the Secretary of State, would, as I understand
it, in certain ways restrict the authority that the President must have, if he is to conduct the foreign affairs of this Nation
effectively. . . . I do believe that there are certain features that would work to the disadvantage of our country, particularly
in making it impossible for the President to work with the flexibility that he needs in this highly complicated and difficult
situation."[92] Eisenhower's phrasing, "as analyzed for
me by the Secretary of State," led Bricker and other conservatives to blame Dulles for misleading Eisenhower, and raised their
suspicion that the Secretary of State was a tool of Eastern internationalist interests.
Eisenhower sent Attorney General Herbert Brownell to meet with Bricker to try to delay consideration of the resolution while the
administration studied it; Bricker refused, noting his original proposal was introduced over a year earlier in the previous
session of Congress.[93] Bricker was willing, however, to
compromise on the language of an amendment, unlike Frank Holman, who was intent on a particular wording. However, the
administration, particularly Dulles, irritated Bricker by refusing to offer an alternative to his resolution.[94] Eisenhower privately continued to disparage the Amendment with strong
language, calling it "a stupid blind violation of the Constitution by stupid, blind isolationists" and stating "if it is true
that when you die the name of the things that bothered you the most are engraved on your skull, I'm sure I'll have there the mud
and dirt of France during the invasion and the name
of Senator Bricker."[95]
G.O.P. infighting
Former Justice
Owen J. Roberts led opposition to the Amendment from outside the
government.
Sherman Adams wrote "Eisenhower thus found himself caught in a crossfire between the Republican conservatives and the
State Department"[96] and stated President Eisenhower thought the Bricker Amendment was a refusal of America "to accept
the leadership of world democracy that had been thrust upon it."[97] In 1954, Eisenhower wrote Senate majority leader William F.
Knowland of California stating, "Adoption of the Bricker Amendment in
its present form by the Senate would be notice to our friends as well as our enemies abroad that our country intends to withdraw
from its leadership in world affairs."[98]
Despite the Amendment's popularity and large number of sponsors, Majority Leader Taft stalled the bill itself in the
Judiciary Committee at the behest of President
Eisenhower. However, on June 10, ill health led Taft to resign as Majority Leader, and five days
later the Judiciary Committee reported the measure to the full Senate.[99] No action was taken before the session adjourned in August; debate would begin in January 1954.
The long delay allowed opposition to mobilize. Erwin N. Griswold, dean of the
Harvard Law School, and Owen J.
Roberts, retired Justice of the United States Supreme Court,
organized the Committee for the Defense of the Constitution.[100] They were joined by such prominent Americans as attorney John W.
Davis,[101] former Attorney General
William D. Mitchell, former Secretary of War Kenneth C. Royall, former First Lady Eleanor
Roosevelt, Governor Adlai E. Stevenson, former President Harry S. Truman, Judge John J. Parker, former Justice
Felix Frankfurter, Denver Post
publisher Palmer Hoyt, the Reverend Harry Emerson
Fosdick, socialist Norman Thomas, and General Lucius D. Clay. The Committee claimed the Amendment would give Congress too much power and make America's
system to approve treaties "the most cumbersome in the world."[102] Roberts dismissed the Amendment, declaring "we must decide whether we are to stand on the silly
shibboleth of national security," a statement supporters of the Amendment eagerly seized
upon.[103] The Committee was joined in opposing the
Amendment by the League of Women Voters, the American
Association for the United Nations, and the Association
of the Bar of the City of New York, one of the few bar associations to oppose the Amendment.[104]
Conservatives Clarence Manion, former dean of the University of Notre Dame Law School, and newspaper publisher Frank E. Gannett formed organizations to support the Amendment while a wide spectrum of groups entered the
debate. Supporting the Bricker Amendment were the National Association of Attorneys-General, the
American Legion, the Veterans of Foreign
Wars, the Marine Corps League, National
Sojourners, the Catholic War Veterans, the Kiwanis, the
U.S. Chamber of Commerce, the National Grange, the American Farm Bureau, the Daughters of the American Revolution, the Colonial Dames, the National
Association of Evangelicals, the American Medical Association, the
General Federation of Women's Clubs, and the Association of American Physicians and Surgeons. In opposition were
Americans for Democratic Action, the American Jewish Congress, the American
Federation of Labor, B'nai B'rith, the United World Federalists, the American
Civil Liberties Union, and the American Association of
University Women — groups Holman characterized as "eastern seaboard internationalists."[105]
Eisenhower aided by Democrats
Faced with essentially united opposition from his own Party's Senate caucus, Eisenhower needed the help of Democrats to defeat
the Amendment. Caro summarized the problem: "Defeating the amendment and thereby preserving the power of the presidency—his first
objective—could not be accomplished even if he united his party's liberal and moderate senators against it; there simply were not
enough of them. He would have to turn conservative Senators against it too, conservatives who were at the moment wholeheartedly
for it—and not just Democratic conservatives but at least a few members of the Republican Old Guard."[106] President Eisenhower continued his opposition. In January he claimed that the
Bricker Amendment would fatally weaken the bargaining position of the United States because the states would be involved in
foreign policy, recalling the divisions under the Articles of
Confederation.[107]
Before the Second Session of the 83rd Congress convened, the Amendment "went through a complex and incomprehensible series of
changes as various Senators struggled to find a precise wording that would satisfy both the President and Bricker." In fact,
President Eisenhower himself in January 1954 said that nobody understood the Bricker Amendment but his position "was clear; he
opposed any amendment that would reduce the President's power to conduct foreign policy."[108] In his opposition to the Amendment, Eisenhower obtained the help of Senate
Minority Leader Lyndon Johnson, who persuaded Senator Walter F. George of Georgia to sponsor his own proposal
in order to sap support from Senator Bricker's. The George Substitute was introduced on January
27, 1954, and especially infuriated Bricker since George also wanted limits on
treaties.[109] George warned in the Senate "I do not
want a president of the U.S. to conclude an executive agreement which will make it unlawful for me to kill a cat in the back
alley of my lot at night and I do not want the President of the U.S. to make a treaty with India which would preclude me from
butchering a cow in my own pasture."[110] Senator
George was ideal as an opponent as he was a hero to conservatives of both parties for his opposition to the New Deal and his survival of President Franklin Delano
Roosevelt's unsuccessful effort to purge him when he sought re-election in 1938. "Democrats and Republicans alike
respected him and recognized his influence."[111]
Eisenhower worked to prevent a vote, telling Republican Senators that he agreed that President Roosevelt had done things he
would not have, but that the Amendment would not have prevented the Yalta
Agreement.[112] By the time the Senate finally
voted on the Bricker Amendment on February 26, thirteen of the nineteen Democrats who had
co-sponsored it had withdrawn their support at the urging of Senators Johnson and George.[113] The original version of S.J. Res. 1 failed 42–50. By a 61-30 vote, the Senate
agreed to substitute George's language for Bricker's — if only ninety-one senators voted, sixty-one was the necessary two-thirds
vote for final approval.[114] Senator Herbert H. Lehman of New York said in the debate "what we are doing
is one of the most dangerous and inexcusable things that any great legislative body can do."[115] However, Johnson had planned carefully and had several votes in reserve. When
revised Amendments came to a vote, with Vice President
Richard M. Nixon presiding over the Senate, Senator Harley M. Kilgore of West Virginia arrived to cast the deciding
vote of "nay." The measure was defeated 60-31. In the final count, thirty-two Republicans voted for the revised Bricker Amendment
and fourteen voted against.
