The Legacy of the Bricker Amendment Natalie Hevener Kaufman

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8-1988 Opposition to Human Rights Treaties in the United States Senate: The Legacy of the Bricker Amendment Natalie Hevener Kaufman

David Whiteman University of South Carolina - Columbia, [email protected]

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Publication Info Published in Human Rights Quarterly, Volume 10, Issue 3, 1988, pages 309-337.

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Oppositionto HumanRights Treaties in the United States Senate: The Legacyof the BrickerAmendment

Natalie Hevener Kaufmanand David Whiteman*

Mypurpose in offeringthis resolution is to burythe so-calledcovenant on humanrights so deep thatno one holdinghigh public office will everdare to attemptits resurrection.' SenatorJohn Bricker (R-Ohio), 1951 As we consider the status of the human rightscovenants today, it would appearthat the ghostof SenatorJohn Bricker must be smilingat the fulfillment of his wish. Thirtyyears after the defeat of the BrickerAmendment, the covenants and most other majorhuman rightstreaties have yet to receive Senate approval.2 Duringthe same period, these covenants have been ratified by eighty-fiveother nations, includingfifteen Westerndemocracies.3 The questionwhich deservesour attentionis why the United Stateshas not ratifiedthese treatiesas well. The United States has long considered itself the leading protectorof human rights.Many Americansconsider the Dec- larationof Independenceand its referencesto "inalienablerights" to be the source of reintroductionof basic human rights into the modern political

*We would like to thankLouis Sohn, JerelRosati, and Paul GordonLauren for their helpful commentson this article. 1. CongressionalRecord. 82nd Cong., 1st sess., 1951. Vol. 97, pt. 8, 8263. 2. Some human rightstreaties have been ratified.Two treatiesfrom the early 1950s, the Conventionon the PoliticalRights of Women and the Inter-AmericanConvention on the Grantingof PoliticalRights to Women,were ratifiedin 1975. In 1968, the Senateratified the SupplementarySlavery Convention, which extendedthe 1926 SlaveryConvention and its Protocol.Some scholarswould also include the four Geneva Protocolswhich cover wartimeconditions and the Protocolon the Statusof Refugees. 3. United Nations,Multilateral Treaties Deposited with the SecretaryGeneral: Status as of 31 December 1986 (New York:United Nations, 1986). Westerndemocracies ratifying the covenantsare: Australia, Austria, Canada, Denmark, Finland, France, the FederalRepublic of Germany,Iceland, Italy, the Netherlands,Norway, Portugal,Spain, Sweden, and the United Kingdom.

HumanRights Quarterly 10 (1988) 309-337 o 1988 by The JohnsHopkins University Press 310 HUMANRIGHTS QUARTERLY Vol. 10 scene. Most Americansbelieve that the United States has the best record on human rightsof any countryin the world. When these treatiesappear to reflect the highest ideals of the Americanpeople, and when our allies and otherdemocracies have been able to reconcile theirpolitical and legal systems with the obligationsof the treaties,why is the United States still unable to do so? The purposeof this analysisis to explore in a systematicfashion (1) the originaldevelopment of argumentsin oppositionto humanrights treaties in the UnitedStates Senate and (2) the residualstrength of these argumentsin contemporarydeliberations. We base our findingson legal analysis, legis- lative histories,content analysis of congressionalhearings, and interviews with congressionalstaff members. Our main conclusions are that proponents of the BrickerAmendment were primarilyconcerned with human rights treaties,that contemporaryarguments against passage of humanrights treaties have not changed substantiallyfrom arguments presented in the 1950s, andthat the legacyof these earlierdeliberations is stillapparent in the attitude of those consideringthe treatiesnow. Certainly,given the politicalenvironment of the 1950s, some suspicion of human rightstreaties might have been expected. Two aspects of the environmentwere particularlysalient: the movementtoward racial integra- tion and the Cold War.The integrationof Americantroops abroadduring WorldWard II and the establishmentof a wartimeFair Employment Practices Commissionwere small steps which signalled the clear possibilityof im- pendingfederal action to eliminate racialdiscrimination. The reportof the TrumanCommission on Civil Rightsurged federal action to address the country'sracial problems. Legislation was introducedinto Congressto make lynchingsa federaloffense and to eliminatethe poll tax. The SupremeCourt by 1950 was hearingcases challengingPlessy v. Ferguson,and in 1952, the JusticeDepartment submitted amicus curiae briefscriticizing segregation in education. While proponentsof these civil rightsmeasures were skeptical about their success, conservativestook very seriously any discussion of federalaction to dismantlesegregation within the states. States'rights were ardentlydefended as the only bulwarkagainst an expansive federal government which would impose a host of liberal programs,including the eliminationof racial restrictionson marriage,property ownership, and education. Ifcivil rightswere the domesticaspect of the politicalenvironment most relevantto treatyconsideration, the Cold Warwas the majorinternational aspect. To conservativesof the time, the essence of the United Stateswas clearlythreatened by communists.McCarthyism was one extrememanifes- tation of concern that a worldwide communistmovement, directed from Moscow, was taking power on a global scale, and that the United States was the only country with the capability and potential will to halt the menace. Certain major events contributed to these fears. With the explosion of a 1988 BrickerAmendment 311

Sovietnuclear device in 1950, the atomicmonopoly of the UnitedStates disappeared.The entireKorean operation, including the effectiveNorth Koreanresistance, heightened fears of communistpower and the inability of the UnitedStates to confrontand resistit. The ascendenceof the Com- munistParty in China,when joined with the assumptionof Sino-Soviet friendshipand cooperation,was interpretedby conservativesas seriously damagingUnited States influence and security. Theeffect of theseconservative concerns can be seen clearlyin delib- erationover humanrights treaties in the 1950s. Humanrights treaties re- ceivedtheir most extensive review by the Senate during this period in debate over the so-calledBricker Amendment. Opponents of the treaties,led by SenatorBricker, focused their efforts on the adoptionof a constitutional amendmentwhich was primarilymotivated by the allegeddanger arising fromthese treaties.Although international legal scholarshave often ac- knowledgedthis connection between the human rights treaties and the effort inthe early 1950s to amendthe treaty-making provisions of theConstitution, mostinternational relations scholars have not. Most major works on Amer- ican foreignpolicy which mentionthe BrickerAmendment imply that its majorpurpose was the curtailmentof the president'spower to conclude executiveagreements.4 One objectiveof thisresearch, then, is to clarifythe relationshipbetween the BrickerAmendment and human rights treaties. We contendthat, while criticismof the increaseduse of executiveagreements wasreflected in one sectionof theamendment and did become an important issue duringthe debates, the original impetus for the BrickerAmendment was a concern about the United Nations human rightstreaties. And it was in thecontext of the BrickerAmendment controversy that these treaties were brandedas dangerousto theAmerican way of lifeand cast into a Senatorial limbofrom which they havenever really been released.

4. Of the majorforeign policy writerswho treatthe BrickerAmendment, the followingview it primarilyas an attemptto curbthe use of executiveagreements: Merlo Pusey, Eisenhower the President(New York:MacMillan Co., 1956), 231; RonaldStupak, American Foreign Policy(New York: Harper and Row,1976), 112; AlexanderDeconde, A Historyof American ForeignPolicy(New York: Charles Schribner's Sons, 1971), 778; CharlesKegley and Eugene Wittkopf,American Foreign Policy-Patterri and Process (New York:St. Martin'sPress, 1982), 416; JohnRehm, "Making Foreign Policy through International Agreement," in The Constitutionand the Conductof ForeignPolicy, FrancisWilcox and RichardFrank, eds. (New York:Praeger Publishers, 1976), 128; JohnSpanier, "Congress and the Presidency: TheWeakest Link in the PolicyProcess," in Congress,the Presidency,and American Foreign Policy,John Spanier and JosephNogee, eds. (New York:Pergamon Press, 1981), xix. Other writerslink the BrickerAmendment to: congressionalnostalgia for lost power (WalterMurphy, Congress and the Court(Chicago: University of Chicago Press, 1962), 258); an attemptto restrictpresidential freedom to commit U.S. troops overseas (John Spanierand Eric Uslander,How America ForeignPolicy is Made (New York:Praeger Publishers,1975), 81); and a neo-isolationistmovement to curtailU.S. internationalism (LouisGersan, "J. F. Dulles," The AmericanSecretaries of State and TheirDiplomacy, XVIII,Robert Ferrell, ed. (New York:Cooper Square Publishers, 1967), 118-22). 312 HUMANRIGHTS QUARTERLY Vol. 10

Priorto considerationof the BrickerAmendment, the only extensive postwarSenate deliberationson humanrights treaties concerned the Gen- ocide Convention.Many of the argumentsboth for and againstthe Genocide Conventionare specific to it, and thereforethese deliberationsare not a good source for generalarguments against human rights treaties. Neverthe- less, the deliberationsare importantbecause they markedthe emergenceof a smallbut strong group of opponentswho, despitethe overwhelmingsupport for the Conventionfrom many and varied individualsand organizations, managedto block the treaty.sEven at this early point, opponentsdid not considerthe Genocide Conventionto be an isolatedproblem, but partof a much largermovement-the internationalrecognition and legal codification of individualhuman rights-which they feared would alter the natureand processof the Americanpolitical system and the Americanway of life. The argumentsthat germinatedduring the Genocide Conventionhearings later blossomed into full-fledgedopposition to all human rightstreaties. The remainderof the articleis dividedinto four sections. The first section is an analysisof the BrickerAmendment itself, highlightingthe explicit and implicit argumentsagainst human rightstreaties. Second, we summarize Senate considerationof the BrickerAmendment. In the third section, we offera typologyof argumentsmade in the 1950s againstratification of human rightstreaties. Fourth, we considercontemporary opposition to the treaties, assessingthe stabilityof argumentsover time and the factorsnow inhibiting passage.

THE BRICKERAMENDMENT

The movementsurrounding the proposal,modification, and supportof the BrickerAmendment reflected a widespreadconcern within the American electorate. Garrettidentifies two importantdimensions of the movement: (1) a "substantive"concern about increasing United States involvement internationallyand (2) an "institutional"dismay at the increasedpower and independenceof the executive in foreignaffairs.6 If we look closely at the

5. Communicationssupporting the Genocide Conventionwere receivedby the Senatefrom organizationssuch as the AmericanFederation of Labor,American Legion, American Veterans'Committee, Amvets, Bar Association of the Cityof New York,Catholic Association for InternationalPeace, Congressof IndustrialOrganizations, Federal Council of Churches of Christ,General Federation of Women'sClubs, Loyal Order of Moose, NAACP,National Conferenceof Christiansand Jews, National Federation of Businessand ProfessionalWom- en's Clubs,Salvation Army, and UnitedCouncil of ChurchWomen. For a moreextensive list, see U.S. Congress.Senate. Committeeon ForeignRelations. Subcommittee on the Genocide Convention.Hearings on the InternationalConvention on the Preventionand Punishmentof the Crimeof Genocide. 81st Cong.,2d sess., 1950. S. Rept.472. 6. Steve Garrett,"Foreign Policy and the AmericanConstitution: The BrickerAmendment in ContemporaryPerspective," Int'I Studies Q. 16:2 (1972): 187-220. 1988 BrickerAmendment 313 immediatecause of concern, however,we can see that humanrights treaties played the most importantrole in initiatingand maintainingthe spirited attack on the treaty-makingpowers. Opposition to the treaties,of course, reflectedboth substantiveand institutionalconcerns. The substantivecon- cern focused on the notion that humanrights fall within a nation'sdomestic jurisdictionand are not an appropriatesubject for treaty-making.The institutional concern revolved around the issue of the distributionof power between the federal governmentand the states; human rightsfall in the domain of "states'rights" and are, therefore,reserved to the states by the tenth amendmentto the Constitution. One importantpoint to be made is that,although there are many different reasons why various membersof the Senate in the 1950s supportedthe collection of proposals now subsumed under the general term "Bricker Amendment,"concern over the effects of human rightstreaties was in the forefront.Senator Brickerhimself linked his proposalto his opposition to the human rightstreaties and their internationalimplementation: Thereis a singlenessof purposeof courseon the partof all of us ... who have joinedin the presentationof thisResolution. ... TheAmerican people want to makecertain that no treatyor executiveagreement will be effectiveto denyor abridgetheir fundamental rights. Also, they do notwant their basic human rights to be supervisedor controlledby internationalagencies over which they have no control.7 Anti-communistand anti-Sovietfeelings also provided motivationfor the amendment,and often these two fears were linked. IronCurtain countries would no doubtwelcome a newRoosevelt-Litvinov agree- mentto maketheir confiscatory decrees effective in the UnitedStates .... [Rleactionaryone-worlders fare] trying to vestlegislative powers in non-elected officialsof the UN andits satellite bodies with a socialist-communistmajority.8 If we examine each section of the 1953 form of the amendment,we can see reflectedthere a variety of political and legal concerns raised by the human rightstreaties. Section 1

The firstsection of the BrickerAmendment simply states: "A provisionof a treatywhich denies or abridgesany right enumeratedin this Constitution

7. U.S.Congress. Senate. Committee on theJudiciary Subcommittee on ConstitutionalAmend- ments.Hearings on S. R. Res. I and S.1. Res.43, Treatiesand ExecutiveAgreements. 83rd Cong., 1st sess., 1953. S. Rept. 2-3. (Cited hereafteras: Senate judiciaryCommittee Hearings,1953.) 8. SenatorJohn Bricker,quoted in "ForeignPolicy," Congressional Quarterly Almanac 10 (1954): 245. 314 HUMANRIGHTS QUARTERLY Vol. 10

shall not be of any force or effect" (emphasisadded). In defending Sec- tion 1, SenatorBricker said it would ensure that "no [humanitarian]treaty can be effective to underminethe constitutionalrights of Americanciti- zens....."9 The issue here is the natureand extentof the limitson the content of treaties.Some constitutionallaw scholarshad arguedthat treaties,being the supreme law of the land, were not subject to normal constitutional restrictions.Such would be a broad readingof ArticleVI, paragraph2, of the Constitution: all Treatiesmade, or whichshall be made,under the Authorityof the United States,shall be supremeLaw of the land;and the Judges in everyState shall be boundthereby, any thing in the Constitution or Lawsof anyState to theContrary notwithstanding. SenatorBricker described Section 1 in the following manner: Section1 subjectsthe President and the Senate to constitutionalrestraints in the exerciseof thetreaty-making power comparable to thosewhich limit their action as participantsin theenactment of ordinarylegislation. This was, of course,the originalintent of the framers of theConstitution and was reflected in early judicial dicta.'0 He was referringto the decision in Geofroyv. Riggs,which held that the treatypower does not extend "so far as to authorizewhat the Constitution forbids.""The difficulty,as SenatorBricker viewed it, was the subsequent decision of the SupremeCourt in Missouriv. Holland,which left ambiguous the meaningof ArticleVI, paragraph2. Actsof Congressare the supreme law of theland only when made in pursuance of the Constitution,while treaties are declared to be so whenmade under the authorityof the UnitedStates. It is open to questionwhether the authorityof the UnitedStates means more than the formalacts prescribedto makethe convention.12 Brickersaw this decision in 1919 as effectivelyreversing that of Geofroyv. Riggs, and he argued that the lack of clarity on this crucial issue made amendmentof the Constitutiona necessity.He arguedthat mostof the rights contained in the Bill of Rightswould be "repealed"by ratificationof the humanrights covenant. His amendmentwould preventthis travesty.

9.-Senate JudiciaryCommittee Hearings, 1953, note 7 above, 11. 10. JohnBricker, "Making Treaties and OtherInternational Agreements," Annals of the Amer- ican Academy289 (1953): 137. 11. 133 U.S. 266 (1889). 12. Missouriv. Holland,252 U.S. 433 (1919). 1988 BrickerAmendment 315

TheAmerican people resent the argument that rights which they regard as God- givenand inalienablecan be alienatedby the Presidentand two-thirds of the Senatepresent and voting.13

Section 2

It is in Section 2 that we see most clearlythe institutionalline of attacklaid by the Brickerproponents. They wished to secure greaterprotection for states' rights,arguing the constitutionalgrounds of the tenth amendment. Section 2 of the BrickerAmendment proposed that: No treatyshall authorizeor permitany foreignpower or any international organizationto supervise,control, or adjudicaterights of citizensof the United Stateswithin the UnitedStates enumerated in this constitutionor any other matteressentially within the domesticjurisdiction of the UnitedStates. The purpose of this section was to restrainthe federal governmentfrom furtherencroaching upon states' rightsvia the treating-makingpower. As has alreadybeen mentioned,a great concern was the use of these treaties to establisha federalbasis for desegregation. This section would haveenabled Congressto review all treatiesbefore they would have any domestic appli- cation, thereby preventingthe federal governmentfrom using treatiesas a basisfor expanding its authorityinto areaswhere power is otherwisereserved to the states,under the tenthamendment to the Constitution.This issue arose from one possible interpretationof the Missouriv. Holland decision. The case concerned a treatybetween the United States and Great Britainreg- ulating,for conservationpurposes, the takingof migratorybirds. The state of Missourichallenged the treaty and the implementinglegislation on the groundsthat it interferedwith states'rights and violated the tenthamendment of the Constitution.In upholdingthe treatyand federal statute,Mr. Justice Holmes stated: We do not meanto implythat there are no qualificationsto the treaty-making power;but they must be ascertainedin a differentway. It is obviousthat there maybe mattersof the sharpestexigency for the nationalwell beingthat the act of Congresscould not deal withbut that a treatyfollowed by such an act could..... Thetreaty in questiondoes notcontravene any prohibitory words to be found inthe Constitution. The only question is whether it isforbidden by some invisible radiationfrom the generalterms of the TenthAmendment.14

13. SenateJudiciary Committee Hearings, 1953, note 7 above, 6. Atthe timeof these Hearings, therewas a single covenant. 14. Missouriv. Holland,252 U.S. 432 (1919). 316 HUMANRIGHTS QUARTERLY Vol. 10

To this question he answered "no." And it is this issue which led to the draftingof Section 2 of the BrickerAmendment. Senator Bricker stated: Section2 preventsthe Presidentand the Senatefrom using treaties as an in- strumentof domesticlegislation without the participationof the Houseof Rep- resentatives.In addition, section 2 protectsthe reservedpowers of thestates by preventingCongress from acquiring by treatylegislative power which it does not possess in the absence of treaty.... [It] reversesthe doctrineof Missouri v. Hollandwhich holds that a treatymay empower Congress to legislatein areas prohibitedby theTenth Amendment in the absenceof treaty.1" In additionto states'rights concerns, Section 2 was designedto protect UnitedStates domestic jurisdiction. Senator Bricker cited Article 2, paragraph 7, of the United Nations Charterand arguedthat the humanrights treaties were violatingthis provision. Arehuman rights essentially within the domestic jurisdiction? Dr. Philip Jessup andmany others who haverepresented us at the U.N.say, "No." If that is true, thennothing is essentiallywithin the domesticjurisdiction. Those who oppose section2 mustbelieve that the relationshipbetween the American people and theirown governmentis notpurely a domesticmatter." He then explained that this reason was the motivatingforce behind all his effortsto amend the Constitution. Whatthis amendment would in essencedo is to keepthe rights of theAmerican peoplein the spiritualrealm and not placethem in the temporalpower of an internationalgovernment which is controlledby countries which are totalitarian in theirphilosophy and seem to haveno conceptof the God-giveninalienable rightsthat the peopleof Americaenjoy.17

Section 3

A furtherconcern of those supportingthe BrickerAmendment was thatcourts mightapply provisionsof the human rightstreaties directly, without implementing legislationfrom Congress.Since the treaties, in general, have no explicit provisionthat they are not self-executing,this interpretationmight be possible. Brickerdescribed Section 3 as an effortto preventthe invasion of our domestic jurisdictionthrough the instrumentalityof human rights treaties.Section 3 read: "A treatyshall become effective as internallaw in the United Statesonly throughthe enactmentof appropriatelegislation by the Congress."Senator Bricker cited the Fujiicase as a "reminderthat treaties

15. Bricker,note 10 above, 136. 16. SenateJudiciary Committee Hearings, 1953, note 7 above, 9. 17. Ibid., 12. 1988 BrickerAmendment 317 may have far-reachingand unintendedconsequences.... "1 In this case the intermediateCalifornia court cited Articles55 and 56 of the United Nations Charter,as invalidatingthe state'salien land act. SenatorBricker concluded: If the SupremeCourt of the UnitedStates should adopt the reasoningof the lowerCalifornia Court, thousands of Federaland Statelaws will be nullified. ... Alltreaties affecting domestic law must be madenon-self-executing to avoid unintentionalalteration of the rightsof the Americanpeople under Federal and Statelaws.19 Thissection was, in effect, a second line of defense in the event thata human rightstreaty was actuallyratified by the Senatewithout a non-self-executing provisionor reservation.20Courts, then, would have been preventedfrom citing treatyprovisions that had not been implementedby domestic legislation.

Section 4

The increasein the use of executive agreementsand theireffect on the rights of Americansalso troubled Senator Brickerand his supporters.Section 4 respondedto the fear of abrogationof rightsby agreementsnot submitted to Congress: Allexecutive and other agreements between the Presidentand any international organization,foreign power, or official thereof shall be madeonly in the manner andto the extentto be prescribedby law.Such agreements shall be subjectto the limitationsimposed on treaties,or the makingof treaties,by thisarticle. Thissection was a reactionto the SupremeCourt's decisions in the Belmont and Pinkcases. At issue was the Litvinovagreement, signed as partof the settlementsurrounding the recognitionof the Soviet government.It was not submittedto Congress,and it did result in propertytransfers which were contraryto the state law of New York.Bricker bitterly presented the case in the following manner: Foreigncreditors were entitled to the protectionof the fifthamendment. Both Russiaand the UnitedStates were powerless to deprivethem of thatproperty. However,the Supreme Court held that an agreement between Franklin Roosevelt and MaximLitvinov cancelled out propertyrights otherwise protected by the fifthamendment and the publicpolicy of the Stateof New York.21

18. Ibid.,7. 19. Ibid.,7--8. 20. An attachmentto the ratificationresolution for the GenocideConvention requires exactly thisstep: that implementing legislation be enactedby Congressbefore the treatyis officially ratifiedby the UnitedStates. 21. SenateJudiciary Committee Hearings, 1953, note 7 above, 7-8. 318 HUMANRIGHTS QUARTERLY Vol.10

The more general issue was the determinationby the Courtthat: "A treaty is a "law of the land"under the supremacyclause ... of the Constitution. Such internationalcompacts and agreementsas the Litvinovassignment have a similardignity."22 In other words, executive agreementshave the same constitutionalstatus as treaties.Thus, the Brickerforces argued that if human rightstreaties and agreementswere acceded to by the United States as executive agreementswithout the consentof the Senate,they could be used to deprive Americansof their basic rights, including the right to private property.

Summary

Inthe finalanalysis, it would appearthat the crucialtopic of debate became whether or not human rights is an appropriatesubject matterfor treaty- making.Opposition to the conclusionof humanrights treaties came to signify the protectionof domesticjurisdiction, the maintenanceof states'rights, and the defense against the encroachmentof internationalorganizations. As SenatorBricker put it: "the peace of the world is endangeredby the U.N.'s ambitionto superviseand control the purelydomestic affairsof its members.. ."23 He specificallyattacked the covenant: the StateDepartment of the previousadministration contended that the U.N. draftCovenants on HumanRights were great humanitarian treaties, and that the Americanpeople should cheerfully submit their political, civil, and economic rightsto UnitedNations definition, supervision, and control.24

FORMALCONGRESSIONAL DELIBERATIONS

On 17 July1951, SenatorBricker made a directattack on the humanrights treaties by proposingthat the Senate adopt a resolutionthat would have requiredthat the presidentannounce that the covenant was unacceptable and withdrawthe United Statesfrom participationin draftingit and other humanrights treaties. In the course of debate, SenatorBricker characterized the covenantas "a Covenanton HumanSlavery," a legalizationof "themost vicious restrictionsof dictators,"a "legal basis for the most repressivemea- suresof atheistictyranny," "an attemptto repealthe Bill of Rights,"a threat to freedomof religion,and "a blueprintfor tyranny."25

22. U.S. v. Pink,315 U.S. 230 (1942). 23. SenateJudiciary Committee Hearings, 1953, note 7 above, 9. 24. Ibid.,10. 25. CongressionalRecord. 82nd Cong., 1st sess. 1951. Vol. 97, pt. 8, 8255. 1988 BrickerAmendment 319

By 14 September1951, SenatorBricker moved to introducea constitutional amendment aimed at protectingthe "sacred rights which [U.S. citizens]enjoy underthe Billof Rightsand the Constitution."26On 7 February 1952, SenatorBricker introduced, with fifty-nineco-sponsors, a second constitutionalamendment.27 In introducingthe amendment, Senator Bricker made specific mention of the human rightscovenants. Thereis notthe remotest chance that even one-third of thepresent Senate would underminethe rightsof the Americanpeople by votingfor the U.N. Covenant on HumanRights or anyother treaty of similarimport. However, the rightsand freedomsenumerated in the Constitutionmust be protectedin perpetuity,and not merelyby the suffranceof the Presidentand two-thirdsof the Senators presentand voting.28 The Senate JudiciaryCommittee held hearingson the BrickerAmendment in May and Juneof 1952. By a vote of nine to five, the Committeeapproved an amended version, but the Senate adjournedwithout debatingthe issue. On 7 January1953, Senator Brickeronce again introduceda constitutionalamendment, this time co-sponsoredby sixty-twoSenators.29 Support had grown for some form of the amendmentand passage appearedlikely. At the hearingsheld in 1953 by the Senate JudiciaryCommittee, the Eisen- hower administrationexpressed its opposition to the amendmentthrough testimony by Secretaryof State Dulles. Dulles had the difficulttask of re- versing himself publiclyon human rightstreaties. Supporters of the Bricker Amendmenthad frequentlycited a speech by Dulles in which he statedthat treaties "can take powers from the States and give them to the Federal Governmentor to some internationalbody, and they can cut across the rightsgiven the people by their constitutionalBill of Rights."30In an effort to assuage the fears of the Brickerfollowers and undercutsupport for the amendment,Dulles made the following conciliatorystatement: Thisadministration is committed to the exerciseof the treatymaking power only within traditionallimits. . ... [W]hile we [the administration]shall not withholdour counselfrom those who seek to drafta treatyor covenanton humanrights, we do not ourselveslook upon a treatyas the meanswhich we wouldselect as the properand mosteffective way to spreadthroughout the worldthe goalsof humanliberty.... We, therefore,do not intendto become a partyto any suchcovenant or presentit as a treatyfor consideration by the Senate.... 31

26. Ibid., 11361. 27. CongressionalRecord. 82nd Cong., 2d sess., 1952. Vol. 98, pt. 1, 907-14. Also, Laurence Smith(R-Wisc.) introduced the same amendmentinto the House on 11 February1952. 28. Ibid.,908. 29. S.J.130 was introducedand expiredduring the 82nd Congress. 30. John Brickerand CharlesWebb, "TreatyLaw vs. Domestic ConstitutionalLaw," Notre Dame LawReview 29:4 (1954): 531. 31. SenateJudiciary Committee Hearings, 1953, note 7 above, 825. 320 HUMANRIGHTS QUARTERLY Vol.10

He also said that the administrationhad no intention of recommending ratificationof the Genocide Convention. Despite this appeal, the Senate Committeeon ForeignRelations voted to approvethe amendment. Floordebate began on 20 January1954. The Eisenhoweradministration continued to oppose the BrickerAmendment but had approved a much weaker proposal,the Knowlandversion, which had been offeredas a sub- stitute.32When the votes were finally taken, the Brickerversion failed to receive the requisitetwo-thirds vote for a constitutionalamendment--fifty- two Senatorsvoted in favor,while fortywere opposed.33A weakerversion proposed by Senator George came closer, falling one vote short of the requirement. What is importantto rememberin assessingthese deliberationsis that, while supportersof the amendment were reacting against human rights treaties,opponents of theamendment were not arguingin favorof the treaties. Argumentsagainst the BrickerAmendment had littlerelevance to the debate over humanrights treaties, and the defeatof the BrickerAmendment revealed nothingabout supportfor the treaties.Opponents argued, for example, that the amendmentwould interferewith the day-to-dayconduct of foreignaffairs, significantlyalter a constitutionalbalance of power that had worked well for 160 years, endanger national survival, limit the president'sability to conduct and end a war, impede arrangementsfor the control of atomic energy and nuclearweapons, and embarrassthe presidentin frontof both allies and enemies.34 Throughoutthe recordsof the public debates relatedto human rights treaties,a single privateinterest group consistentlyheld a dominantplace and deservesspecial consideration:the AmericanBar Association (ABA).35 The determinationwithin the ABAthat humanrights treaties posed a threat to Americans'basic rightsand to theirsystem of governmentwas crucialto the popularityof the Brickerproposal. In introducingthe amendmentin 1953 SenatorBricker said:

I shouldlike to pay tributeto the magnificentwork of the AmericanBar As- sociationand its Committee on Peaceand Law through United Nations in alerting the Americanpeople to the dangersinherent in the treaty-makingpower.36

32. "ForeignPolicy," Congressional Quarterly Almanac 10 (1954): 255. 33. Ibid.,255. 34. SenateJudiciary Committee Hearings, 1953, note 7 above. 35. The role of the ABAhas been discussed in an article by John Schmidhauserand Larry Berg,"The ABA and the HumanRights Conventions: The PoliticalSignificance of Private ProfessionalAssociations," Social Research 38 (1971):362-410. See also "ForeignPolicy," CongressionalQuarterly Almanac 9 (1953): 233. 36. CongressionalRecord. 82nd Cong., 2d sess., 1952. Vol. 98, pt. 1, 910. 1988 BrickerAmendment 321

A study of ABArecords reveals that the human rightstreaties provided the initialimpetus for the formulationof the amendmentand a substantialreason for the ABA'sstrong support of it.37 The ABA has consistentlyheld a special status in the Senate's consideration of the human rightstreaties. Its unique position was reflected in numerousstatements by SenatorBricker in which he expressedhis gratitude to the ABAfor their help, includingtheir suggestionson the rewordingof the amendment.38ABA members testifying in favorof the amendmentwere given special consideration;for example,they were invitedby the Chairman of the Subcommitteeto sit at his table." Special care was taken to consider their convenience for attending,and they were informedwhen important witnesses were testifyingagainst the amendment.During the hearings,they frequentlyquestioned other witnesses, a privilegenormally reserved to members of the subcommittee.Arrangements were made so that one member could testifyafter all the opponents had finishedtheir testimony in orderto respondto any argumentsthat had been made.40 And, throughoutthe deliberations,ABA positions on the amendmentand on varioustreaties were cited by others as authoritative.

A TYPOLOGYOF ARGUMENTSAGAINST RATIFICATION

Previoussections have examinedthe argumentsagainst human rights treaties found within the BrickerAmendment itself and within formalcongressional deliberations.This section presentsa typology of argumentsoffered in oppositionto ratificationof humanrights treaties in the 1950s. While numerous hearingswere held on the BrickerAmendment during this period,the single best source of anti-ratificationarguments is the set of hearingsheld by the SenateJudiciary Committee in Februaryand Aprilof 1953. These were the most extensive hearings and they occurred when Senate supportfor the amendment was at its strongest. During these hearings, the Eisenhower administrationmade its commitmentnot to ratifythe human rightstreaties. Thisaction made subsequenthearings less fruitfulfor our purposes,because it reducedthe numberof referencesby witnesses to the treaties. Content analysis of the 1953 hearings(the proceduresfor which are describedin greaterdetail in the next section) reaffirmsthe appropriateness of using these hearingsto explore argumentsagainst human rightstreaties.

37. See NatalieHevener Kaufman, Why the UnitedStates Doesn't Ratify Human Rights Treaties, forthcoming. 38. SenateJudiciary Committee Hearings, 1953, note 7 above, 158. 39. Ibid.,3. 40. Ibid., 158. 322 HUMAN RIGHTSQUARTERLY Vol. 10

TABLE1 Analysisof Testimonyin Supportof The BrickerAmendment, SenateJudiciary Committee Hearings, 1953 Percentageof ABA Non-ABA All Topic Testimony Testimony* Testimony (n- 208) (n= 92) (n= 300) HumanRights Treaties 49.5** 51.1 50.0 GeneralAbuse of TreatyPower 31.2 46.7 36.0 ExecutiveAgreements 11.1 0.0 7. 7 Other*** 8.2 2.2 6.3

*Includedin this categorywere representativesfrom the followingorganizations: Veterans of ForeignWars of the UnitedStates, New OrleansState, American Flag Committee, and National Societyof the Daughtersof the AmericanRevolution. **Figureswere computedby dividingthe numberof pages of testimonydevoted to each topic by the total numberof pages of testimony.The hearingincluded 300 pages of testimony in supportof the Brickeramendment. ***The"Other" category includes other topics discussedby witnesses,discussions related to the procedureof the hearingsthemselves, and supplementarymaterials provided by the witnesses-such as texts of treatiesand listsof organizationsand countries.

Each page of testimony in supportof the BrickerAmendment was coded accordingto the dominanttopic of discussion.The resultsindicated a clear focus on human rightstreaties. According to Table 1, the topic of human rightstreaties accounted for 50 percentof the testimony.The other major issues of the hearings,executive agreementsand the general abuse of the treaty-makingpower, togetheraccounted for 43.7 percent.Also clear from the table is the significanceof the role of the ABA.The testimonyof members of the ABA'sSpecial Committeeon Peace and Law through the United Nationsaccounted for 69 percentof all testimonyin supportof the Bricker Amendment.The statementsused in the remainderof this section to ex- emplify the argumentsproposed are drawn almost entirelyfrom this ABA testimony.

DiminishBasic Rights

The mostfrequently mentioned arguments against human rights treaties was that the treatieswould diminishbasic rights.They reflecta lower standard of rights,either intentionallyor as a resultof inevitablecompromises, and citizens of the United Statesstand to lose ratherthan gain from ratification of the treaties.The argumentrests on the contention that once a human rightstreaty is ratified,constitutional protections would be superceded.Ar- 1988 BrickerAmendment 323 thurJ. Schweppe, chair of the ABACommittee on Peace and Law through the United Nations, stressedthis idea in his testimony:"The limitationsin the firstamendment with respect to freedomof speech, press, and religion are only limitationson Congress.They are not a limitationon the treatymakingpower."41 And FrankHolman, one-time ABApresident, presented this argumentdramatically: the"internationalists" andthe State Department move step by step-first aspirations,then ratificationof these aspirationsin treatyform, then international courtsto enforcethe aspirations.Thus our internalrights under our own Con- stitution,and Bill of Rights,are to be underminedstep by stepand will continue to be underminedunless the American people shut off this insidious process by an appropriateconstitutional amendment.42 Variousspecific rightswhich were thoughtto be endangered,including mostof the rightsin the Billof Rights,were discussedthroughout the hearings. The testimony of ABA member EberhardDeutsch on the freedom of the pressconveys the flavorof these attacks:"[the treaties] contain the festering germs of destructionof a free press beyond the antisepticproperties of the firstamendment."43

Violate States' Rights

Another frequentlycited objection to the human rights treaties was the alleged threatthey posed to states'rights. The treaties,it was argued,would legitimizefederal action in areas formerlyreserved to the states. Some opponents identified supremacy of the federal governmentas the ultimate objective of the treaties.Deutsch stated clearly: it is impossibleto overemphasizethe significanceof presentconstitutionally possibleabuses of the treatymakingpower in the UnitedStates. The unques- tionableobjective of at leastsome of the opponentsof constitutionallimitation of thatpower is earlyelimination of Stateand local political entities except as administrativeagencies of the Nation. . ... The gilding of multipartitetreaties with such idealisticimmediate goals as the preventionof genocideand the promotionof humanrights cannot conceal their underlying long-range objective to destroylocal government while expanding the sphereof nationalpower."

41. Ibid.,59. 42. Ibid., 143. Holmanwas presidentof the ABAfrom 1948 to 1949. He led a campaign, beginning in 1947, to alert the countryto the dangersof "treatylaw." This campaign targetedthe United Nationshuman rights treaties as a threatto the Americansystem and identifiedlawyers as the primaryactors in haltingthe developmentand ratificationof these treaties. 43. Ibid.,116. 44. Ibid.,115, 116. 324 HUMANRIGHTS QUARTERLY Vol. 10

Federalaction with respectto civil rightswas very much on the minds of those supportingthe BrickerAmendment. Frank Holman described his concern: [A treaty]can increasethe powersof the FederalGovernment at the expense of the States.For example, in the so-calledfield of civil rights,a treatycan do whatthe Congress has theretofore refused to do.The Congress has to daterefused to enactthe civil rightsprogram.45 He went on to explain that the federal governmentcould accomplish this objectivethrough ratification of the humanrights treaties. Deutsch articulated the commonconcern that the treatieswould be usedspecifically to legitimize federallegislation on racialmatters: "and the same instrumenthas recently been cited with greatforce as a prohibitionof race segregationin the District of Columbia,in Kansas,and in other States."46 A common metaphorfor the treatiesoften heard during the hearings was that of the TrojanHorse. Deutsch explainedthe metaphorwell: the treatyclause of the Constitution(article VI) [is] as a 'TrojanHorse,' ready to unloadits hiddensoldiery into our midst, destroying State laws and consti- tutionsand leavingbehind the wreckageof the dreamof the FoundingFathers whichenvisioned maintenance of the establishedconstitutional balance be- tweenState and Federal power, and preservation of the Billof Rightsintact.47 Some of the specificstates' rights which were mentionedduring the hearings as being in dangerof encroachmentwere the rightsto restrictland sales on the basis of race and nationalorigin, set criminaland civil liabilities,de- termine the political rights of women, establish qualificationsfor public school teachers,and regulatemembership in the medical and legal profes- sions-which seemed especially unsettlingto the testifyingABA members.48

PromoteWorld Government

A thirdargument which was made frequentlyduring the hearingswas that human rightstreaties constituted a move in the directionof establishinga worldgovernment. An ABAmemorandum on the amendmentwas included in the testimonyof VernonHatch and referredto the issue of world government.

45. Ibid.,145. 46. Ibid.,116. 47. Ibid.,119. 48. Ibid., 100, 120-23, 1107, 1131, 1132. 1988 BrickerAmendment 325

Notonly is thetreaty power a threatto theStates, it is a threatto thevery Federal Governmentitself through the pressuresof inter-nationallyminded groups who wouldfavor erecting a worldgovernment by thetreaty route in whosefavor we wouldabdicate much, if notall, of oursovereignty....49 The dangerevoked by Holman is of Americanswaking up to find that they are living under world government."We [could] have had a full-fledged world governmentovernight, and this is exactly what may happen under so-called treatylaw unless a constitutionalamendment is passed protecting Americanrights. .. ."50soOpponents of the amendmentare portrayedas at best misguided and at worst ill-intentioned.George Finch's testimony is addressedto the former. Theadoption of the proposedconstitutional amendment now beforethis com- mitteerelating to the treatymakingpower would stop the prevailingtrend to regardthe UnitedNations as butthe firststep in the ultimateestablishment of a worldgovernment in whichthe UnitedStates would occupy the positionof a province.... Now,the so-called liberals, the peoplewho areopposing things thatwe aretrying to do herewould take us backinto that era from which we emerged300 yearsago and subordinateour sovereignty,which meansour freedomand our independence,to some foreignpower in whichwe would havebut one voteamong many...*.s The latterview of the opposition is presentedby Deutsch. Itis difficultto believethat objections to a constitutionalbulwark against direct legislativeparticipation by Polandand the Argentinein the local affairsof Louisianaand North Dakota and Ohio and Utah can be rootedin goodfaith."s

SubjectCitizens To Trial Abroad

A continuingargument which aroused strongemotional responsewas the allegationthat humanrights treaties would lead to the trialof Americansin foreign courts. The major points of the allegation are described in Ober's testimony. Amongthe 200 treatiesthat are beingproposed is a treatycreating an internationalcriminal court... a courtcomposed of all butone of foreignjudges, includingjudges from other countries who have no conceptionof our inde- pendentjudiciary but think only of the judgesas an armof the politicalgov- ernment.s3

49. Ibid.,105. 50. Ibid., 143. 51. Ibid., 1108. 52. Ibid., 115. 53. Ibid.,168. 326 HUMANRIGHTS QUARTERLY Vol. 10

As implied in the statementabove, aversion to the idea of trials abroad carriedwith it a suspicionof foreignjudicial systemsand fear of the loss of proceduralsafeguards. Meanwhile,the GenocideConvention is stillon the agendaof the Senatefor ratification,which, if ratified,would, among other things, commit us to the principle of the trial of Americancitizens in foreign courts . . . where our constitutionaltrial procedures and Bill of Rightswould not operate.s4

Threaten Our Form of Government

A fifthline of oppositionto the humanrights treaties was the allegationthat they constitutea serious threatto our form of government.In additionto the disintegrationof the line between federal and state powers, testimony beforethe SenateJudiciary Committee frequently predicted the generalde- structionof the Americanpolitical system. The ABA StandingCommittee reportexemplified this line of reasoning,suggesting that "the real signifi- cance" of the amendmentwas "the preservationof our formof government againstthe abuse of the treatypower."55 Holman made a similarargument speakingof the human rightstreaties and the need for the amendment. Ourown Billof Rightsforbids the Congressto changeour basic rights but as the Constitutionnow standsit does not preventour basicrights from being changedby a treatymade by the treatymakingagency which consists of the Presidentand two-thirds of theSenators present and voting. This is the loophole in the Constitutionthat we now face and throughwhich the internationalists proposeto moveand by treatylaw changeand level out ourAmerican rights (bothState and individual)and thereby change our form of government."

EnhanceSoviet/Communist Influence

McCarthyismand the Cold War,which dominatedthe politics of the early 1950s, had a clear impact on the debates concerning the human rights treaties.Arguments related to the communistscare appeared in two different forms.One, closely relatedto the precedingargument, emphasized the direct threatposed by the Soviet Union. The treatieswere presentedas manifes- tations of Soviet effortsto underminethe Americansystem. Again the testimony of Finch is instructive:

54. Ibid.,143-44. 55. Ibid., 47. 56. Ibid., 144. 1988 BrickerAmendment 327

the UnitedStates should not participatein the negotiationof treaties,the effect of which would be to buildaround us a wall of socialisticand communist containmentin anticipationof the witheringaway of ourprinciples of human freedomand of the decayof thefree institutions we haveestablished to secure them.Are we so certainof our internalstrength that we can resistindefinitely the communisticsoftening to whichwe arebeing subjected?s7 Morefrequently, the spectreof communismappeared in allegationsthat the treatiescontain socialist rights.The dangersoutlined were multiple. One of the firstdocuments produced under this program of world-widereform ... was the so-called Declarationof HumanRights.... Thisdeclaration, among otherthings, is a completeblueprint for socializingthe world,including the UnitedStates. Article 23 providesthat everyonehas the rightto "justand favorableconditions of workand to protectionagainst unemployment" and that everyonehas the rightto "justand favorable remuneration. .. ." Thepurpose providedwas to liquidateour individual enterprise system.58 SenatorBricker also presentedhis concern that the treatieswould alter our "controlover our domestic, social, and economic rights,world medicine, socialized medicine.... I am tryingto plug that loophole so that there will be no possibilityof it."59He also addressedthe issue by stating:"You know that the AmericanMedical Society is greatlydisturbed about the possibility of socialized medicine in this countrycoming in by the back door of treaties."60

Infringeon Domestic Jurisdiction

The human rightstreaties were consistentlycriticized on the groundsthat they infringedupon the UnitedStates domestic jurisdiction and violatedthe domesticjurisdiction clause of the United NationsCharter. Some opponents believed that the treaties involved mattersthat were essentially domestic and beyond the legitimatereach of an internationalorganization. Holman made this claim in citing a member of the United Nations Human Rights Division: who statedthat what the Commission[on HumanRights] was proposingcon- stitutedan interventionin matters"within the domesticjurisdiction" of the memberstates. And he exposedthis whole program which has since been under way in the UnitedNations, in my opinionnot a programof peaceat all, buta programfor meddling in the affairsof the memberstates.6'

57. Ibid.,1109-110. 58. Ibid., 136. 59. Ibid., 155. 60. Ibid., 112. 61. Ibid., 133. 328 HUMANRIGHTS QUARTERLY Vol. 10

Deutsch expressed the contention that domestic jurisdiction was threatened by human rights treaties: With similarsuavity, albeit with greaterlogic, we were assuredthat section 7 of articleII of the Charterof the UnitedNations gave us addedprotection against interferenceby thatworld organizationin our domesticaffairs. But today even the opponentsof constitutionallimitations on treatymakingpower can no longer sustaintheir confidence in understandingsand reservationsas adequatesafe- guardsagainst the destructivepotentialities of internationalconventions.62

Create Self-ExecutingObligations

A further,somewhat technical argument,made primarilyby lawyers,was that the treatieswere self-executing.Self-executing treaties need no implementinglegislation to be effectiveand can be cited and appliedby domestic courts.As we have seen, one provisionof the BrickerAmendment was that no treatywould be implementedwithout congressionallegislation. Finch explained this purposeof the amendment."The purposeof the American Bar Associationamendment [is] to make all treatiesnon-self-executing as internallaw and thus requirelegislation to makethem internallyeffective."63 He also elaboratedupon the special problemsof the human rightstreaties as self-executing. Thatis why we had all this discussionabout the Treatyon HumanRights. ... The UnitedNations itself cannot by anydeclaration or resolutionor draft treatymake law within the UnitedStates. When they do tryto do it, it is through the treatymethod because of our peculiarprovision of our Constitution.What we are tryingto do now is to plug that gap so they cannot do it that way and wouldbe obligedto resortto legislationby the wholeCongress."

Increase InternationalEntanglements

Other argumentswere generatedby antipathytoward the United Nations and United Nationsagencies and a fearof foreignentanglements. Non-ABA witnesses were particularlyoutspoken about their suspicions of the United Nations activities,especially action relatedto human rights.For example, Reverend DeLoss Scott appeared on behalf of the American Council of ChristianChurches and spoke against the United Nations and especially

62. Ibid.,115. 63. Ibid.,1123. 64. Ibid.,1148. 1988 BrickerAmendment 329 againstthe Covenanton Human Rightsand the Genocide Convention.He cited the opening words of the Charterwhich "bringsthe United Nations down into the realmof humanaffairs, affairs which affectour daily lives as individuals"and praised Senator PatrickMcCarran for his regret"to my dying day that ever voted for the U.N. Charter."6s W. L. McGrath,speaking on behalf of the United States Chamberof Commerce, presented a very critical view of the United Nations and its agencies. In speaking of the treaties produced by the United Nations, he said: Don'tyou see how deviousthese peopleplan how they move intothe back doorif theycan't deal with you at the frontdoor? They go aroundto the back door.And that is dangerous....The issue cannot be dismissedby saying casually thatof courseeven a barequorum of the Senatecould not conceivablyratify anythingthat would not be in conformitywith the Constitution." Associatedwith the neo-isolationismof the time was an ethnocentrism,a suspicion of foreign states and a fear of entanglingalliances. Holman expressed the firstof these concerns. "Why should we overlay our inherent and preciousrights and freedomswith a patternof internationalrights drawn to suit the concepts of more than 60 nationswith varyingand antagonistic concepts."" And Mrs. EnidGriswold, representing the National Economic Council,referred to the second of these issues. "Therole of world leadership which ... has been thrustupon us, can best be fulfilledby preservingour AmericanRepublic and by limitingour internationalcommitments to what we can do withoutweakening ourselves."68

CONTEMPORARYOPPOSITION IN PERSPECTIVE

To what extent, then, do the argumentsagainst human rightstreaties de- veloped in the 1950s, which crystalizedduring the debate over the Bricker Amendment,continue to influence contemporarycongressional deliberations? We have explored two sources of data in addressingthis question. First,we have comparedthe 1953 hearingson the BrickerAmendment with roughlycomparable contemporary hearings. Second, we have interviewed congressionalstaff membersin an attemptto assess the importanceof the Brickerlegacy from their perspective.

65. Ibid.,273-74. 66. Ibid.,565. 67. Ibid.,142. 68. Ibid.,176. 330 HUMANRIGHTS QUARTERLY Vol.10

Stabilityof ArgumentsOver Time

Two sets of congressionalhearings were selected for content analysis.As already noted, the Brickerhearings in 1953 representthe best source of argumentsagainst human rightstreaties from the 1950s. Formore contemporaryarguments, the single best source is the recordof hearingsheld in 1979 concerningfour human rightstreaties which were sent to the Senate by PresidentCarter in 1978.69 Contentanalysis of the hearings,which included testimonyfrom members of Congressas well as otherwitnesses, was limitedto those witnesses who eithersupported the BrickerAmendment in the 1953 hearingsor opposed any of the treaties discussed at the 1979 hearings. The content of the testimony of each of the witnesses was analyzed accordingto the list of majorlines of arguments,and minorvariations on those arguments,presented in the Appendix (which summarizesthe discussion fromthe precedingsection). All specific referencesto one or more human rightstreaties were examined, and each new appearanceof an argumentwas assignedto the propercategory.70 Hearings were coded inde- pendently by two investigators,and inconsistentcodings were analyzed further.Results of the analysis are presented in Table 2, which provides figureswhich indicate,of the totalnumber of argumentsmade in the hearings, the percentageof times each individualargument appeared. The results in Table 2 indicate the consistency of argumentsmade in opposition to human rightstreaties, along with some interestingvariation over time. Perhapsthe clearestindication of consistencyis that93.5 percent of the argumentswhich appeared in the 1979 hearingswere essentially unchangedfrom 1953. In addition,the relativefrequency of argumentsdid not change significantly.The two principlearguments in both periods-that the treatieswould diminishbasic rightsand violate states' rights-held the same rankingsand accounted for a substantialproportion of the total arguments(38.2 percent in 1953 and 56.1 percent in 1979). The only arguments'which declined dramaticallyin frequencywere concerns that the treatieswould subject citizens to trial abroadand would increase international entanglements.The remainingarguments from 1953 were all clearly evident in the 1979 hearings,with theirrelative frequencies not significantly altered.

69. The four treatieswere: the two covenants, the AmericanConvention, and the Racial DiscriminationConvention. 70. Forsimilar efforts see Ole Holsti,Content Analysis for the Social Sciencesand Humanities (MenloPark, California: Addison-Wesley Publishing Company, 1969); and Steven del Sesto, "NuclearReactor Safety and the Role of the Congressman:A ContentAnalysis of Con- gressionalHearings," journal of Politics42 (1980): 227-41. 1988 BrickerAmendment 331

TABLE2 Analysisof ArgumentsMade Against Human Rights Treaties, Basedon Senate Hearingsin 1953 and 1979 1953 1979 Percentage Rank Percentage Rank DiminishBasic Rights 21.4% 1 32.7% 1 ViolateStates' Rights 16.8 2 23.4 2 PromoteWorld Government 13.6 3 6.5 4 EnhanceSoviet/Communist Influence 11.2 4 4.7 8 SubjectCitizens to TrialAbroad 10.6 5 0.9 10 ThreatenOur Formof Government 7.8 6 11.2 3 Infringeon DomesticJurisdiction 6.5 7 5.6 6 IncreaseInternational Entanglements 5.1 8 0.9 10 CreateSelf-Executing Obligations 4.9 9 2.8 9 Other 2.1 10 4.8 7

New 1979 Arguments - 6.5 4 Total 100.0 100.0 (n= 387) (n= 107)

The two new argumentswhich appeared during the 1979 hearings reflectedchanges in the political and economic environment.The firstnew argumentwas a response to the increased numberof uncompensatedex- propriationsof United States assets abroadand the apparenteffort by de- veloping countriesto legitimize them. This argumentattacks the covenant provisionon permanentsovereignty over naturalresources. The UnitedStates representativethroughout the draftingof the treatiesargued that the wording mightbe interpretedas allowingexpropriation of foreigninvestment without promptand adequate compensation. SenatorJesse Helms was especially incensed about this provision,which he argued "would for the firsttime legitimize the unlawful expropriationwithout compensation or arbitrary seizure of Americans'property overseas."71 The second new argumentarose fromdomestic oppositionto the women's movement,particularly the ERA.Phyllis Schlafly was vehement in her contentionin thatthe treatieswould depriveAmerican women of important protections.For example, she arguedthat the Covenanton Civiland Political Rightswould obligate the federal governmentto "registerand conscript

71. U.S. Congress.Senate. Committee on ForeignRelations. Hearings on InternationalHuman RightsTreaties. 96th Cong., 1st sess., 1979. S. Rept.8. 332 HUMANRIGHTS QUARTERLY Vol. 10

women for militaryservice" whenever men were registeredand conscripted. She also linkedthe destructionof women's rightsto the loss of states'rights: mhis covenantwould change the marriagelaws of mostof the 50 statesby imposing'equality of rights'as betweenthe spousesduring marriage.... The Covenantwould also take away the rightsof statelegislatures in thefifty states to enactand retainthe marriagelaws desired by the peopleof each stateand devisedin a processof democraticdecision-making.72

FactorsInhibiting Action

A secondavenue for exploring contemporary arguments against human rights treatiesis to assess the currentopinions of membersof the Senate Foreign RelationsCommittee. We interviewedthe primaryforeign policy staffmembers of ten of the sixteen committee membersin the 98th Congress.Res- pondents were guaranteedanonymity. All unattributedquotations in this section are from these interviews.Interviews ranged in durationfrom forty to ninety minutesand were conducted in January1984. At the time of the interviews,congressional action on human rights treatiesappeared to be extremelyunlikely. While still formally pending before the Senate ForeignRelations Committee, the treatieswere not on the con- gressionalagenda. Supportersof the treatiesdid not appearto be planning any actionto stimulatecongressional consideration. They saw littlepolitical benefit to be gained in advocating the treaties, and feared the potential politicalcontroversy as the latent oppositionto the treatiesonce again became vocal. Supporterswere convinced that "if they brought[the treaties] up, they would be filibustered,and therewould be effortsto amend them." One clear findingis that,whatever the influenceof the BrickerAmend- ment, it is not often based on direct knowledge about the Brickerdebate. Few of the staffmembers interviewed were even familiarwith the specifics of the debate in the 1950s. Instead,the legacy lies in the near-universal perceptionthat human rightstreaties are inherentlycontroversial. As one respondentexpressed it, what is "importantis the perceptionof a given treaty . . . everything gets categorized." Anything associated with human rightsis viewed as "not immediate,apparently controversial, so we can push it aside."Another staff member indicated that "it was the BrickerAmendment controversy,and the incredibleknock-down drag-out fight that Eisenhower had in fightingthat off, that I thinkformed a lot of the basic background." What would it take to overcome this legacy? Respondentswere asked to rankfive factorsaccording to their importancein explainingthe current situationof the human rightstreaties. According to Table 3, the most im-

72. Ibid.,105, 108. 1988 BrickerAmendment 333

TABLE3 Rankingsof FactorsInhibiting Passage of HumanRights Treaties, Basedon Interviewswith Senate Staff, 1984 StaffMembers Factor Republican Democratic All (n= 7) (n= 3) (n= 10) Supportof Administration 1.9* 2.0 1.9 InternalSenate Politics 2.3 3.0 2.5 PublicOpinion 3.6 1.3 2.9 Contentof Treaties 3.3 4.7 3.7 CurrentInternational Situation 4.0 4.0 4.0

*Figuresare the averageranking (out of a possible 5) given to this factorby each categoryof staff. portantfactor was the positionof the president.Respondents, particularly Republicanrespondents, perceived that the lackof intereston the partof the Reaganadministration was the mostimportant factor in explainingwhy the Senatehad no plansto consider,much less approve,the treaties.Presi- dentialsupport was viewed as an essentialingredient for passage:"the administrationhas to be mobilizedfor the Congressto be mobilized;""the Presidentwould have to be behindthem;" "a strongpresidency to twist armsis the only way for [humanrights] treaties to get through." Respondentsoften referred to the Carteradministration, which did sign threehuman rights treaties and formally supported their passage in the Senate. TheCarter administration's support of the humanrights treaties, however, eventuallybecame secondary to the supportof othertreaties: "the President only has so manycards to play, and Carterwas sidetrackedby Panama Canaland SALT II." In any case, a decisionto takean active role in advocating humanrights treaties is a difficultone to make,in lightof the perceived meagerpolitical benefits. Advocating the treatieswould be "politically costly"without tangible rewards: "the essential element [inhibiting passage] is a lackof politicalconstituency ... peoplecannot see a directlink between the treatiesand their overall interest." Debateover the GenocideTreaty in 1984, whichoccurred subsequent to the completionof the interviews,certainly supports this view of the role of theexecutive branch in promotingconsideration of humanrights treaties. PresidentReagan's unexpected endorsement of theGenocide Treaty resulted in the almostimmediate Senate consideration. The Senate Foreign Relations Committee'spassage of the treatyoccurred just a few weeks later,despite universalpessimism on the partof Senatestaff earlier that year. 334 HUMANRIGHTS QUARTERLY Vol. 10

A second general conclusion supportedby Table 3 is that the actual contentof the treatiesis not viewed as the primarydeterminant of the current situation.Perception is important,not content.In general, staff members had not read any of the treaties and were unfamiliarwith their content and objectives. They were, on the other hand, very clear about the expected responseof opponentswithin and behindthe Senate.Reactions to the treaties were based on their perceived controversiality,the absence of a large and powerfulsupporting constituency, and the lack of active presidentialsup- on the provisionsof the documents.In matters of greatcontroversy andport--not small tangible return,proponents of the treatiesgenerally preferred to remaininactive rather than to commit scarce resourcesof time, favors,and energy.

CONCLUSION

In this articlewe have analyzedthe earlyopposition to humanrights treaties in the United States Senate and the residual effect of this opposition on contemporaryconsideration of the treaties.We have documentedthat opposition to human rightstreaties was central in the movement duringthe 1950s to amend the treatyprovisions of the Constitution.During the effort to pass the BrickerAmendment, arguments against human rightstreaties were elaborated in their fullest form and were given national attention. Becauseof the stronghistorical support of the UnitedStates for humanrights treaties,and the leadingrole this countryplayed in draftingthem, many had assumedthat the question before the Senatewould be "Why not ratifythe treaties?"The hearingson the BrickerAmendment effectively turned that questionaround. Proponents of the treatieswere puton the defensive,having to answera host of legal and politicalcriticisms. By the end of the hearings, these argumentshad crystallizedinto a set of objectionswhich, based on our analysis of the stabilityof argumentsover time, appearedessentially unchangedin the 1979 hearingsand which are still being cited today. These long-standingobjections are not easily overcome-fears once raisedare not easily laid to rest.The recentexperience of the ABAprovides a good illustration.Although very successful in the 1950s in dramatizing what they perceivedto be the dangersof the treaties,the ABAin the mid- 1970s reversedits position on all of the human rightstreaties covered in this study and recommendedSenate approvalwith reservations.3"Yet the

73. The ABAapproved the SupplementarySlavery Convention in 1967; the Genocide Con- vention (with specified understandings)in 1976; the RacialDiscrimination Treaty (with reservations)in 1978; the AmericanConvention on HumanRights (with reservations)in 1979; and both Covenantson HumanRights (with reservations) in 1979. 1988 BrickerAmendment 335 treatiesstill have not received sustained Senate attention. The ABA's currently activecampaign in supportof the treaties-to persuadethe Senatethat the "dangers"inherent in the treatieshave now disappeared-willcertainly be a difficulttask, given the legacyof theiroriginal negative campaign which providedthe underpinningfor decades of opposition. Thearguments of the 1950s fosteredthe perceptionthat human rights treatieswere controversial and potentially dangerous. These arguments ap- peartoday despite deep andwidespread changes in UnitedStates domestic law on humanrights and the ascendancyof humanrights in regionaland internationalfora. Continued United States inaction on humanrights treaties confusesmost of ourcitizens and many of ourallies. Yet ratification remains unlikely.The personal campaign of SenatorBricker to "bury"human rights treatiescontinued as late as 1971, when he wroteto the SenateForeign RelationsCommittee during their hearings on the GenocideConvention: "I do notwant to live to see the daythat the Constitutionof the UnitedStates and the Bill of Rightsbecomes a merescrap of paper,and this treaty,if ratified,would be the beginningof such a process."74The legacyof the BrickerAmendment appears to be continuedopposition to humanrights treaties,continued neglect of themby the UnitedStates Senate, and con- tinuedevidence of the successof SenatorBricker's burial tactics.

APPENDIX ARGUMENTSAGAINST U.S. RATIFICATIONOF HUMANRIGHTS TREATIES

1. DIMINISHBASIC RIGHTS: Human rights treaties reflect a lower stan- dardthan is currentlyguaranteed; they will take away U.S. rightsand protection. 1a. endangerthe Bill of Rights lb. constitutean attackon the concept of inalienablerights 1c. deprive U.S. citizens of freedom of assembly 1d. deprive U.S. citizens of freedom of religion le. deprive U.S. citizens of freedom of the press if. deprive U.S. citizens of freedom of speech 1g. deprive U.S. citizens of the rightof privateproperty 1h. deprive U.S. citizens of the rightto privatemedical care and to operateprivate medical practice

74. U.S. Congress.Senate. Committee on ForeignRelations. Subcommittee on the Genocide Convention.Hearings on the Genocide Convention.92nd Cong., 1st sess., 1971. 137- 39. 336 HUMANRIGHTS QUARTERLY Vol.10

2. VIOLATESTATES' RIGHTS: Human rights treaties violate Constitutional protectionof states'rights. They will give the Federalgovernment powers meantto be retainedby the states. 2a. land ownershipby aliens may be allowed 2b. professionalmedical and bar practiceby aliens may be allowed 2c. there is no federal-stateprovision in the treaties 2d. racial matters 2e. other states' rights

3. PROMOTEWORLD GOVERNMENT: Human rights treaties are being used to move towardworld government. 3a. open us up to criticismin internationalfora 3b. requireus to impose internationalstandards, which would constitutean erosion of sovereignty 3c. subordinateus to foreignpowers

4. ENHANCESOVIET/COMMUNIST INFLUENCE: Human rights treaties fostercommunism, soviet policies, and socialist rights. 4a. Human rightstreaties are a partof the Communisteffort to take over the world. 4b. specific mentionof the Soviet Union 4c. contain socialist rights, including economic, social and cultural rights 4d. obligate governmentsto provide privatesector services as public sector rights(food, shelter,clothing) 4e. challenge the free enterprisesystem (rightto strike, form trade unions) 4f. anti-ILO

5. SUBJECTCITIZENS TO TRIALABROAD: 5a. deprive US citizens rightto trial by jury 5b. anti-internationalcriminal court

6. THREATENOUR FORMOF GOVERNMENT:Human rightstreaties will erode fundamentalgovernmental powers. 6a. The FoundingFathers would not approve 6b. increasepower of the presidentat the expense of Congress 6c. resultin loss of controlover immigration 6d. give presidentnew power to seize property

7. INFRINGEON DOMESTICJURISDICTION: Human rights treaties contain subjectswhich infringeon domestic matters. 1988 BrickerAmendment 337

8. INCREASEINTERNATIONAL ENTANGLEMENTS: Human rightstreaties are the creationof the U.N. which is a suspect organizationand will draw us into matterswhich should not concern us. 8a. Anti-U.N. 8b. Neo-isolationism

9. CREATESELF-EXECUTING OBLIGATIONS: Treaties are self-executing. 9a. There is no non-self-executingprovision in the treaties. 9b. Otherstates can ratifywithout the treatiesbecoming domestic law; the U.S. cannot.

10. OTHER: 10a. Human rightstreaties will underminethe ability of the U.N. to do its majorjob of security. 10b. Humanrights treaties contain only the rightswe alreadyhave and provide no additionalprotections for U.S. citizens. 10c. Expertssay that human rightstreaties should not be ratified. 11. NEW1979 ARGUMENTS: 11a. Legitimateexpropriation of U.S. propertyabroad 11b. Diminishthe rightsof U.S. women