XII. Revolutoin by Treaty

XII. Revolutionby Treaty A DISTINGUISHED legal scholar and member of Congress from Virginia, Henry St. George Tucker, wrote a book called Limitations on the Treaty-Making Power, published in 1915, in which he prophetically characterized the treaty clause of the Constitution (Article VI) as a Trojan horse, ready to unload its hidden soldiery into our midst, destroy the Bill of Rights and shatter the dream of the founding fathers that they were creating a government of laws and not of men. The acuity of this lawyer-statesman's perception was demon strated on June 2, 1952, when Chief Justice Vinson and two other dissenting. members of the· United States Supreme Court held that the United Nations Charter and other treaties adhered to by the United States authorized President Truman to seize and operate the nation's steel industry. Clarence Manion, form er Dean of the Law School of Notre Dame University, told a Senate Judiciary Subcommittee that when the Supreme Court decided the steel seizure case, the United States was just "two justices short of revolution." He was not exaggerating. If two other justices had concurred in the Vinson dissenting opinion, it would be the law of the land and the president could take any measures he might deem necessary to prosecute a war pursuant to a United Nations recommendation. It is self-evi dent that if the president could seize and operate the steel in dustry on the pretext of a war emergency, he could seize all industry, nationalize agriculture, draft men and women into military service or labor battalions, and carry out a program of national socialism just as Hitler did in Germany.

The Chief Justice, in his revolutionary dissenting opinion, justified the President's action on the ground of necessity, which REVOLUTION BY TREATY 207 was precisely the excuse given by Hitler when he subverted the Weimar Constitution of the German Republic. "Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times," said Vinson. "A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more ter rifying global conflict." In requesting approval by tije Reich stag of a law which became the foundation of his dictatorship, Hitler, on March 21, 1933, said: "The government will only make use of these powers insofar as they are essential for carry ing out vitally necessary measures." According to the Vinson argument, the uninterrupted pro duction of steel was indispensable for the prosecution of the war in Korea, and the United States, as a party to the United Nations Charter, was obligated to carry out a resolution by the Security Council calling upon member nations to do every thing necessary to repel the aggression in Korea. For good measure, Vinson threw in the Truman doctrine, the Marshall plan, the North Atlantic Treaty Organization, the mutual se curity pacts in the Pacific region, and even the technical as sistance program in support of his contention that the United States had accepted "in full measure its responsibility in the world community" and could not hope to fulfill its obligations under a "messenger boy concept" of the president's office.

Senator McCarthy charged that Truman was persuaded to issue his executive order of April 8, 1952, directing the Sec retary of Commerce to seize and operate the steel industry, by Leon Keyserling, his left-wing chief economic adviser. Keyser ling certainly supported if he did not instigate the President's action. World War II taught the revolutionists that the people can be drawn into national socialism gradually if they are suf ficiently frightened by an external "crisis" to endure destructive taxes, inflationary government expenditures, and encroaching economiccontrols.The Vinsondoctrinewouldgreatlyacceler ate the revolutionary process. Although rejected by the Su preme Court majority, it dramatically illustrated the use of foreign policy as a road to revolution.

208 THE TWENTY-YEAR REVOLUTION Sixty-four senators, two thirds of the Senate, have sponsored a Constitutional amendment by Senator Bricker (R., 0.) which provides that: ". . . A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect. ... No treaty shall authorize or permit any foreign power or any international organization to super vise, control or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution .... A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress." Even some of the opponents of the Bricker amendment con cede that certain proposed treaties might adversely affect the rights now enjoyed by Americans under the Constitution, but they argue that the Senate can be trusted not to give its advice and consent for the ratification of such treaties by a two-thirds vote of those present, as required by the Constitution. The fal lacy of this argument was demonstrated by what the President sought to do, and what three justices of the Supreme Court said he could do, under the United Nations Charter, which was approved by the Senate by a vote of 89 to 2. It was further demonstrated on July 15, 1953, when the same Senate mem bership which had sponsored the Bricker amendment by a two to one ratio voted 72 to 15 in approving a treaty depriving American soldiers stationed in foreign countries of the protec tion of the Constitution in trials for criminal offenses. When such a revolutionary measure is approved by a Senate which is so conscious of the peril of treaty lawmaking that it sponsors the Bricker amendment by a two-to-one majority, there is no telling what some future Senate might do.

The agreement depriving American soldiers of their Con stitutional rights is a supplement to the North Atlantic Treaty. It provid~s that treason, espionage, and offenses committed in the performance of duty shall subject a soldier stationed in a foreign country to trial by the authorities of his own country. For all other offenses, he shall be subject to trial in the courts, of the foreign country where he is stationed. The American REVOLUTION BY TREATY 209 Constitution provides that no person shall be put in jeopardy twice for the same offense; nor shall be compelled in a criminal case to testify against himself; that the accused shall enjoy the right to a speedy and public trial· by an impartial jury; to be informed of the nature and cause of the accusation; to be con fronted with the witnesses against him; to have compulsory process for obtaining witnesses; to have assistance of counsel; that excessive bail shall not be required nor excessive fines im posed, nor cruel and unusual punishments inflicted. Under American law the accused is presumed innocent until proved guilty beyond a reasonable doubt. American soldiers, drafted and transported beyond the seas for the defense of foreign coun tries, are deprived of these Constitutional protections. One of the "injuries and usurpations" for which King George III was arraigned in the Declaration of Independence was this: "He has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation." Truman and Acheson, Eisenhower and Dulles, "combined" with the NATO countries to do exactly the same thing, and a supine Senate, devoid of the spirit that animated the signers of the Declaration of Independence, gave its assent.

Any civilian who goes to a foreign country, or any soldier who does so as a tourist or visitor, voluntarily subjects himself to prosecution in the courts of that country for offenses against its laws. Before the approval of the supplementary NATO agreement, however, soldiers stationed in foreign countries could be tried only by the military authorities of their own country. The great Chief Justice John Marshall, in the case of the Schooner Exchange v. McFaddon, declared that a sover eign who allows the troops of a foreign prince to pass through or be stationed in his dominions is understood "to cede a por tion of his territorial jurisdiction." This was a universally rec ognized principle of international law. In World War II, the British Parliament passed a law recognizing the exclusive juris diction of American authorities to try American soldiers ac cused of offenses in Britain. American soldiers stationed in any 210 THE TWENTY-YEAR REVOLUTION foreign country were subject to trial only under the Uniform Code of Military Justice, enacted by Congress pursuant to the Constitution.

One of the chief defenders of the new treaty before the Sen ate Foreign Relations Committee was Walter Bedell Smith, Undersecretary of State, who might well have been court martialed for dereliction of duty on the basis of the army board's report on the Pearl Harbor disaster. Smith boasted that the treaty was "precedent-making." He said senators of only one generation ago would have been "completely shocked" by such a proposal. When questioned about this he realized that he had put his foot in his tIlouth and corrected himself, saying he had meant to say that the treaty was "unprecedented." It was not necessarily a precedent for similar agreements with other countries, he said. Smith distinguished himself on October 10, 1945, by telling the British Royal Service Institution that if he were required to organize another military headquarters he would get "my in telligence officers and my planners from the British war office."

Before the Senate Foreign Relations Committee on April 8, 1953, he recalled that General Hastings Lionel (Lord) Ismay, secretary general of NATO, had described the organization as a sort of gentlemen's club which no government can enter un til it proves that it is "housebroken" in the unanimous view of the members. Senator Bricker, addressing the Senate on May 7, 1953, re marked that Clarence Streit, head of the so-called Atlantic Union movement, would exclude Greece and Turkey, both NATO members, from the proposed Atlantic Union because they are not considered sufficiently "housebroken." He asked whether Smith would dare to say that Dictator Tito is not "housebroken" if the United States should station troops in Yugoslavia and a question should be raised about trying them in communist courts. "The United States has military forces stationed in about 40 countries," said Senator Bricker. "Are we to tell all but 14 of those nations that they are not genteel, not housebroken?"

REVOLUTION BY TREATY 211 Members of the Foreign Relations Committee noted that one of the countries in which the United States maintains troops is Saudi Arabia, and that· the penalty for some minor crimes under Islamic law is the cutting off of a hand. There were references to the fact that many mayors and police chiefs of cities and judges in the courts of France and Italy, both NATO countries, are Communists, and therefore may be pre sumed to be sympathetic with the communist "hate America" campaign. Smith acknowledged that the United States already had agreed to negotiate a supplementary treaty with Japan, giving it the right to try American soldiers under Japanese law. What Smith knows about Japanese jurisprudence would be an interesting subject of inquiry. Herman Phleger, legal adviser of the State Department, acknowledged that American soldiers, under the supplementary NATO agreement, might be tried by military courts, and thus placed in double jeopardy, if their superiors were not satisfied with the punishment in flicted by foreign courts. He acknowledged that in the Euro pean countries, England excepted, there is no presumption of innocence; that most of them permit secret trials; that the NATO agreement does not require a jury trial; that it contains no ban on cruel and unusual punishment, and that it grants no right of review by American courts. The only rights safe guarded by the treaty itself are a speedy trial, advance infor mation of the specific charge, confrontation of witnesses, com pulsory prQcess, legal representation, the services of an inter preter, and the right to communicate with a representative of the United States government.

The Constitution, in Article VI, declares: "This Constitu tion, 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, anything in the Constitution or laws of any state to the contrary notwithstanding." It will be noted that while acts of Congress are valid only when made pursuant to the Constitution, treaties are the supreme law of the land when 212 THE TWENTY-YEAR REVOLUTION made under the authority of the United States, that is, in the manner prescribed by the Constitution, which provides that the president "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur." In Missouri v. Holland (1920), known as the migratory bird and sometimes as the "wild goose" case, the Supreme Court held that Congress has power under a treaty to enact legislation which would be unconstitutional in the absence of a treaty. Congress had passed a law to protect wild fowl, and it was held unconstitutional by the federal courts on the ground that such power, not being delegated to Congress by the Con stitution, was reserved to the states under the Tenth Amend ment. The United States thereupon negotiated a treaty with Great Britain in respect of Canada, and a subsequent law enacted pursuant to the treaty was held valid. The trend to ward unlimited treaty power was further developed in United States v. Curtiss-Wright Corporation (1936), in which the court viewed the treaty authority not as a power delegated by the Constitution, but one that is inherent in sovereignty.

The purpose of Senator Bricker's Constitutional amendment is to safeguard the Constitution itself from destruction by abuse of the treaty power. Opponents of the Bricker amendment deny that our Constitutional government and the liberties of the people are menaced by treaty lawmaking, and they generally cite the Supreme Court's dictum in Geofroy v. Riggs that the treaty power cannot "authorize what the Constitution forbids." However, this case was decided in 1889 and therefore was su perseded by the doctrine of the migratory bird and Curtiss Wright cases. The late Chief Justice Hughes, addressing the American Society of International Law in 1929, declared that there is "no explicit limitation" on the treaty-making power in the Constitution and that he would "not care to voice any opinion as to an implied limitation on the treaty-making pow er." He noted that the Supreme Court, in Missouri v. Holland, had "expressed a doubt whether there could be any such" limi tation. Hughes said there might be ground for implying a limREVOLUTION BY TREATY 213 itation on the treaty-making power because its "appropriate object" is to deal with foreign nations, and "not to make laws for the people of the United States in their internal concerns."

Although refusing to deny the power, Hughes thus affirmed the impropriety of using treaties to make domestic laws, which is what the revolutionists are attempting to do. A State Depart ment bulletin, issued in September, 1950, said~ "There is no longer any real difference between 'domestic' and 'foreign' affairs." Addressing a regional meeting of the American Bar Asso ciation at Louisville, Ky., on April 11, 1952, John Foster Dulles said: "The treaty-making power is an extraordinary power, liable to abuse. Treaties make international law and also they 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 law can override the Constitution. Treaties, for example, can take powers away from the Congress and give them to the President; they can take powers from the states and give them to the fed eral government or to some international body, and they can cut across the rights given the people by their constitutional Bill of Rights."

Despite this grave warning of the danger of treaty law-mak ing' Dulles, as Secretary of State, appeared' before a Senate Judiciary Subcommittee a year later, on April 6, 1953, and strongly opposed the Bricker resolution or any amendment of the Constitution. While acknowledging that there had been a tendency to use the treaty power to effectuate social reforms, Dulles promised that the Eisenhower administration would use it "only within traditional limits." On the very next day the Foreign Relations Committee began hearings on the NATO agreement depriving American soldiers of their Constitutional rights, which the Truman administration negotiated and the Eisenhower administration ratified. Dulles promised that the administration would not sign the United Nations human rights covenant or the convention on the political rights of women, 214 THE TWENTY-YEAR REVOLUTION and would not press for Senate approval of the convention against "genocide." He insisted, however, that "national power to achieve free world unity of purpose and performance" is a matter of "national survival." He objected particularly to the provision that no treaty should become the law of the land ex cept through legislation by Congress.

Members of the American Bar Association's Committee on Peace and Law Through the United Nations (a curiously in appropriate title), who had been warning the country of the treaty menace for years, charged that Dulles was asking the people to put their confidence in men instead of laws. They quoted Thomas JefIerson: ". . . it would be a dangerous de lusion were a confidence in the men of our choice to silence our fears for the safety of our rights.... Confidence is every where the parent of despotism; free government is founded in jealousy, and not in confidence; it is jealousy and not confi dence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power.... In ques tions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. " Bernard Bernstein, representing B'nai B'rith, argued before the Senate subcommittee that "we ought to continue to have confidence in the presidency, in the United States Senate, and in the democratic principles that we have been following in this country for well over 160 years.... " Bernstein, a wartime Treasury Department official and later a member of General Eisenhower's staff, was one of the instigators of the infamous Morgenthau plan to destroy Germany.

Senator Bricker told him: "If the First Congress had felt as you now feel, we would never have had the Bill of Rights. They did not trust anybody to deal with this inviolate, God given human right, and I do not trust the President of the United States or the United States Senate to enter into a field that is to my mind sacred, the right of the individual citizen, which is beyond the power and reach of the government." Supporting the proposal that treaties shall not become effecREVOLUTION BY TREATY 215 tive as internal law except through legislation by Congress, Alfred J. Schweppe of Seattle, chairman of the Bar Association Committee, reminded the senators that the United States is the only important country in the world where a treaty operates automatically as domestic law..Schweppe quoted the following from the Canadian Bar Review for November, 1951: "It is a well-established rule of Anglo-Canadian law that the pro visions of a treaty, though binding upon the state under inter national law, do not become part of the law of the land unless they are implemented by legislation. A treaty that has not been implemented by legislation cannot be the source of legal obli gations affecting private rights."

Frank E. Holman, also of Seattle, former president of the American Bar Association and one of the country's foremost authorities on the treaty law peril, invited the attention of the senators to a statement by John P. Humphrey, director of the Human Rights Division of the U.N., in the January, 1948, issue of The Annals of the American Academy of Political and Social Science. Humphrey wrote: "What the United Nations is , trying to do is revolutionary in character. Human rights are largely a matter of relationships between the state and indi viduals, 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 kind of supernational supervision of this relationship between the state and its citizens." Holman declared· that the human rights provisions of the U.N. Charter (articles 55 and 56) and the so-called Universal Declaration of Human Rights adopted by the General Assem bly in 1948 already have had a considerable effect on judicial thinking in court decisions. He mentioned the Fujii case in California, in which an appellate court declared that state's alien land law invalid on the ground that it violated the U.N.

Charter. The State SupremeCourt, while holdingthe law un constitutional, did not ascribe the same controlling effect to the U.N. Charter. Nevertheless, said Holman, the majority opinion was largely "influenced by what the court calls the 216 THE TWENTY-YEAR REVOLUTION 'moral commitment' of the charter. Thus, though in a technical legal sense the California Supreme Court holds that the charter is not a self-executing treaty, the charter is allowed to produce the same effect by projecting itself into the thinking of the court in a new construction of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States to the extent that earlier statutes and decisions (even of the Supreme Court of the United States) upon the identical issue that had stood the test of time and experience were swept aside." Holman said the same judicial technique operated in the mixed marriage case of Perezv. Lippold, in which Judge Car ter, now a member of the California Supreme Court, cited not only the Declaration of Independence and the Fifth and Four teenth Amendments to the Constitution but also the U.N. Char ter, and concluded: "In the face of these authoritative pro nouncements the matter of racial equality should be a settled issue."

Holman cited a ruling by Judge Preston Thatcher of the Idaho Sixth Circuit Court at Blackfoot, on June 16, 1952, that the U.N. Charter takes precedence over the state's alien land law. He declared that the Warsaw convention relating to in ternational air transportation, which was approved by the Sen ate some years ago when the United States was on friendly terms with Russia,. contained a fine print provision depriving American citizens "of their full and proper right to trial by jury" and limiting the liability of carriers for personal injury or death of passengers to 125,000 francs (the equivalent of about $8,300). Holman concluded that if, as Dulles said, a treaty can over ride the Constitution, then it can: " (a) Change our form of government from a Republic to a socialistic and completely centralized state. "(b) Put us into a world government without the people either directly or through the Congress passing on the question.

" (c) Increase the powers of the federal government at the expense of the states. For example, in the so-called field of civil REVOLUTION BY TREATY 217 rights, a treaty can do what the Congress has heretofore re fused to do." Referring to the third point, Holman recalled that a com mittee .. on civil rights, appointed by President Truman, re ported: "The Human Rights commission of the United Nations is.working on a detailed international bill of rights. . . . If this documentis acceptedby the UnitedStates as a memberstate, an even stronger base for congressional action under the treaty power may' be 'established." Addressing a regional meeting of the American Bar Asso ciation at Richmond, Va., on May 5, 1953, Holman noted that the Carnegie Endowment for International Peace had viewed with satisfaction the progress of the U.N. toward world gov ernment. He quoted from its recent booklet on the U.N. the following: "As additional conventions and treaties are added to the constitutional system of the United Nations over the years the member governments will be delegating more and more of their sovereignty to this world organization. . . . The greater the success in reaching political settlements and ad justments, the faster will be the progress toward a world rule of law and world government." Holman refrained from re minding his audience that Dulles was chairman of the board of the Carnegie Endowment; that Alger Hiss was president before he went to prison for lying about his espionage work for the Soviet Union, and that General Eisenhower was a trus tee before he became President of the United States.

More than two hundred treaties and conventions have been spawned by the U.N. and the various specialized agencies af filiated with it. The International Labor Organization alone has submitted to member governments one hundred and three conventions, of which ten have been ratified by the United States. David Morse, the ILO secretary general, who was one of Felix Frankfurter's "happy hot dog" lawyers in the New Deal, declaredin his 1949 report: "Todaythe role of the or ganization as an international parliament has become gener ally accepted." William L. McGrath of Cincinnati, for four years a member of the United States employer delegation to 218 THE TWENTY-YEAR REVOLUTION the ILO meetings in Geneva, testified at the Senate hearing on the Bricker amendment that the 35-year-old ILO originally did constructive work, when its objective was the improvement of working conditions. With the ascendancy of state socialism in Europe, however, the ILO stepped beyond the field of labor into the province of government itself, and has put forward a mass of proposals which, if accepted, would force govern ments into a socialist mold.

The chief treaty-spawning organ of the U.N. itself is the Economic and Social Council, which has authority under the loose language of the Charter to draft virtually any kind of convention in the economic, social, and political fields. This 18 member body, the members of which are elected for three year terms by the General Assembly, has established commis sions and sub-commissions on almost the whole gamut of hu man endeavor. Its Human Rights Commission has been work ing for years on an international human rights treaty, which in 1952 was split into two parts, one on economic, social, and cultural, the other on civil and political rights. A State De partment bulletin reviewing the work of the 1952 session con tained this effusion by Mrs. Eleanor Roosevelt, former chair man and United States member of the commission: "The U.N. campaign for the promotion of human rights must be contin ued and prosecuted successfully if our free way of life is to be preserved.... Neither of the covenants as now drafted con tains any provisions which depart from the American way of life in the direction of communism, socialism, syndicalism or statism. When such provisions have been proposed, the United States has opposed them; every proposal by the Soviet Union and its satellites to write statism into the covenant has been defeated . . ."

Now let us see whether it is possible to believe the testimony of this obtrusive woman. Dr. Charles Malik of Lebanon, who has a Ph.D. degree from Harvard University, was chairman of the 1952 session of the U.N. Human Rights Commission. Writing in the United Nations Bulletin of September 1, 1952, he said: "I think a study of our proceedings will reveal that the REVOLUTION BY TREATY 219 amendments we adopted to the old texts under examination responded for the most part more to Soviet than to western promptings. . . . The concept of property and its ownership is at the heart of the great ideological conflict of the present day. It was not only the Communist representatives who riddled this concept with questions and doubts: a goodly portion· of the non-Communistworldhad itselfsuccumbedto thesedoubts. A study of this particular debate will reveal the extent to which the nonCommunist world has been communistically softened or frightened ..." Dr. Malik declared that a "quiet revolu tion" had occurred in the commission since it began work in 1946. He said the emphasis had shifted "with a vengeance"

from personal liberty to "the adequate standard of living." He attributed this "materialistic revolution" in part to "the increas ing impact of Marx and the amazing persistency of the Soviet representatives in harping upon their views." The covenant on economic, social, and political rights would obligate each government adhering to it to take steps "to the maximum of its available resources" for the realization of: ". . . the right to work . .. safe and healthy working condi tions . . . a decent living (for workers) and their families . . . rest, leisure and reasonable limitation of working hours and periodic holidays with pay . . . special protection (for mother hood and children) . . . adequate food, clothing and housing . . . an adequate standard of living and the continuous im provement of living condition ... the highest attainable stand ard of health ... medical service (for all) in the event of sick ness ... the right of everyone to education ... "

The covenant, as Dr. Malik suggested, owes its inspiration to the Soviet constitution and the Communist Manifesto by Marx and Engels. It would vest full responsibility for the wel fare of the people in the government, and consequently would require government control of all the activities of the people. What a far cry this would be from the traditional American philosophy of government! Grover Cleveland, in his inaugural address on March 4, 1893, said: "The lessons of paternalism ought to be unlearned and the better lesson taught that while 220 THE TWENTY-YEAR REVOLUTION the people should patriotically and cheerfully support their government, its functions do not include the support of the people." The U.N. and the American concepts of human rights are as different as were the political philosophies of Cleveland and Karl Marx. In the U.N. concept human rights are granted by governments. In the American concept, governments may de prive the people of their human rights but they cannot grant them. Human rights are God-given. The Declaration of Inde pendence states that "all men are created equal" and are "en dowed by their Creator with certain unalienable rights." Before the Declaration of Independence was issued, the world had often heard of the "divine right of kings," but not about the divine rights of human beings. The Bill of Rights in the Con stitution does not purport to be a grant of rights. On the con trary, it is a series of prohibitions against government action which might violate the divine rights of the people.

The U.N. covenant on civil and political rights contains provisions which would permit violations of the Bill of Rights, if Dulles was correct in his contention that treaty law can override the Constitution. For example, Article 15 provides that: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice." The same article stipulates, however, that the exercise of these rights may be "subject to certain restrictions, but these shall be such only as are provided by law and are necessary, (1) for respect of the rights or repu tations of others, (2) for the protection of national security or of public order, or public health or morals." The First Amendment of the American Constitution states: "Congress shall make no law ... abridging the freedom of speech, or of the press ..." Clearly, if treaties override the Constitution, the U.N. covenant would authorize Congress to make laws limiting freedom of speech and of the press. Article 2 of the REVOLUTION BY TREATY 221 U.N. covenant provides: "In time of public emergency which threatens the life of the nation, and the existence of which is officially proclaimed, the states parties hereto may take meas ures derogating from their obligations under this covenant to the extent strictly required by the exigencies of the situa tion. ... ." In their dissenting opinion in the steel seizure case, Chief JusticeVinson and JusticesMinton and Reed held that the emergency was so great that "the survival of the Republic itself may be at stake." This suggests how short and easy the road to dictatorship would be under 'Article 2 of the U.N.

covenant. The International Law Commission of the U.N. has drafted a so-called "Code of Offenses Against the Peace and Security of Mankind," which incorporates the principles recognized in the Charter and the judgment of the Nuernberg war crimes tribunal. Offenses set forth in the code would be international crimes, and individual offenders would be subject to trial by an international criminal court. If the United States should go to war with the Soviet Union and lose, President Eisenhower and Secretary Dulles could expect the treatment received by the Nazi leaders at Nuernberg, for their use of free food to make trouble for the Russians in East Germany is a clear vio lation of the code. The code prohibits "The undertaking or encouragement by the authorities of a state of activities calcu lated to foment civil strife in another state, or the toleration by the authorities of a state of organized activities calculated to foment civil strife in another state."

There is pending before the General Assembly a draft stat ute for an international criminal court, with jurisdiction to try individuals accused of violating the proposed code of offenses or other so-called world law which the U.N. is trying to de velop. The British government has sought to kill the interna tional criminal 'court scheme but the American State Depart ment has kept .it alive. George Maurice Morris, a pompous one-world Washington lawyer, represented the State Depart222 THE TWENTY-YEAR REVOLUTION ment on this project under Dean Acheson and continued to do so under Dulles. He denies that the United States is com mitted to the ICC, but he resists all efforts to abandon it. The late Vespasien V. Pella, who represented Romania in this country for some time after it fell under communist domi nation and was himself regarded as an international communist agent, was the chief proponent of a system of international criminal law superior to all governments and constitutions and applicable to individuals. Former Attorney General Francis Biddle, the American member of the Nuernberg tribunal, rec ommended to President Truman that the U.N. should reaffirm and codify the principles of the Nuernberg charter and judg ment. In November, 1946, Truman directed the American del egation to put the question on the Assembly's agenda. A 220 page memorandum, written by Pella and published by the U.N.

in 1950, indicates that he induced Biddle to make his recom mendation to Truman. Pella wrote that "existing or future states will have to regard themselves as members by birth of the international community and as such forced to bow to those higher and universal rules of community life.... " Re plying to a questionnaire sent to him by Pella, Biddle wrote: "It seems to me that the domestic law cannot be permitted to stand in face of the higher international law just as with us, the state statute which conflicts with the federal constitution is invalid. If any other result were achieved, international law, by definition, would become meaningless." The implication is clear beyond mistaking. Unless the peril of lawmaking by treaty is averted by adoption of the Bricker Constitutional amendment, the United States may not long remain "two justices short of revolution." The Bill of Rights, palladium of our liberties, is in jeopardy.