Amendment by Treaty
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
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
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
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
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
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
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
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
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
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
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
...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
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.
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.
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".
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.
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
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]