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University Microfilms INFORMATION TO USERS This dissertation was produced from a microfilm copy of the original document. While the most advanced technological means to photograph and reproduce this document have been used, the quality is heavily dependent upon the quality of the original submitted. The following explanation of techniques is provided to help you understand markings or patterns which may appear on this reproduction. 1. The sign or "target" for pages apparently lacking from the document photographed is "Missing Page(s)”. If it was possible to obtain the missing page(s) or section, they are spliced into the film along with adjacent pages. This may have necessitated cutting thru an image and duplicating adjacent pages to insure you complete continuity. 2. When an image on the film is obliterated with a large round black mark, it is an indication that the photographer suspected that the copy may have moved during exposure and thus cause a blurred image. You will find a good image of the page in the adjacent frame. 3. When a map, drawing or chart, etc., was part of the material being photographed the photographer followed a definite method in "sectioning" the material. It is customary to begin photoing at the upper left hand corner of a large sheet and to continue photoing from left to right in equal sections with a small overlap. If necessary, sectioning is continued again — beginning below the first row and continuing on until complete. 4. The majority of users indicate that the textual content is of greatest value, however, a somewhat higher quality reproduction could be made from "photographs" if essential to the understanding of the dissertation. Silver prints of "photographs" may be ordered at additional charge by writing the Order Department, giving the catalog number, title, author and specific pages you wish reproduced. University Microfilms 300 North Zeeb Road Ann Arbor, Michigan 48106 A Xerox Education Company 73-11,543 MILLETT, Stephen Malcolm, 1947- 1HE CONSTITUTIONALITY OF EXECUTIVE AGREEMENTS: AN ANALYSIS OF UNITED STATES V. BEIMQNT. The Ohio State University, Ph.D., 1972 History, modem University Microfilms, A XERQXCompany, Ann Arbor, Michigan © 1973 STEPHEN MALCOLM MILLETT ALL RIGHTS RESERVED THE CONSTITUTIONALITY OF EXECUTIVE AGREEMENTS: AN ANALYSIS OF UNITED STATES V. BELMONT DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Stephen Malcolm Millett, A.B., M.A, ****** The Ohio State University 1972 Approved by Adviser Department joy History PLEASE NOTE: Some pages may have Indistinct print. Filmed as received. University Microfilms, A Xerox Education Company PREFACE This monograph is an historical analysis of a key Supreme Court case testing the constitutionality of executive agreements. It is a study both in diplomatic and constitutional history. In doing this the author has tried to demonstrate the mechanics of the legal process that begins with a Federal government suit in U.S. District Court and culminates in the final written opinions sub­ mitted by the Justices of the Supreme Court. He has also attempted to illustrate the subjective aspects of consti­ tutional law as well as the substantive issues of Presi­ dential diplomacy in both practice and law. United States v. Belmont was a 1937 Supreme Court case which firmly established the executive agreement with representatives of a foreign state without the advice or consent of the Senate, that is binding both as inter­ national and domestic American law. Although an executive agreement is not the same document as a treaty constitu­ tionally, it is like a treaty in that it supercedes con­ flicting state laws that would compromise the substance of such an agreement. Specifically, this case represented a test of constitutional power between the White House and the State of New York over property laws controlling former ii Russian corporate property in a New York City banking house. The significance of the Belmont case has far over­ shadowed the particular issues involved in the suit. Jus­ tice George Sutherland's opinion for the Court provided a legal basis for later extensive executive commitments to foreign nations. President Franklin D. Roosevelt con­ ducted American wartime diplomacy from 194 0 to 1945 almost exclusively by executive agreement. The American military commitment to South Viet-Nam is a recent, and highly con­ troversial, example of Presidential diplomacy with minimal Senatorial participation in policy-making. Indeed, the Viet-Nam imbroglio itself suggests the need for an his­ torical analysis of the recent origins of the President's expanded constitutional powers in the conduct of American foreign policy. The author would like to thank Professors Marvin Zahniser, Bradley Chapin, and Alfred Eckes of The Ohio State University for their patient assistance and criti­ cism. He must also acknowledge the research assistance of the Ohio State Law Library, the National Archives, and the Manuscript Division of the Library of Congress. The latter was particularly helpful in obtaining permission to use the Charles Evans Hughes Papers and the Harlan F. Stone Papers. Special appreciation is due to Professor Alpheus Thomas Mason of Princeton University for his efforts to facili­ tate this research project. The author also wishes to thank Mr. J. Paul McNamara of McNamara & McNamara (Colum­ bus, Ohio) for his advice and criticism in legal questions. VITA February 22, 1947 Born - New York, New York 1969 ........... A.B., Miami University Oxford, Ohio 1970 Teaching Assistant, Department of History, The Ohio State University, Columbus, Ohio 1970 ................. M.A., The Ohio State University, Columbus, Ohio 1970-1972 Teaching Associate, Department of History, The Ohio State University Columbus, Ohio FIELDS OF STUDY Major Field: History American Diplomatic History, Professor Marvin R. Zahniser American Constitutional History, Professor Bradley Chapin Russian History Since 1613, Professor Michael W. Curran Twentieth Century European History, Professor Andreas Dorpalen v TABLE OF CONTENTS Page PREFACE ................................................ ii VITA .................................................... v Chapter I. INTERNATIONAL POLITICS OF RECOGNITION ......... 1 II. LEGAL CONSEQUENCES OF NON-RECOGNITION ......... 64 III. LITIGATION AGAINST THE BELMONT E S T A T E ............ 116 IV. CONSTITUTIONAL DOCTRINES AND PERSONALITIES . 155 V. LEGAL AND DIPLOMATIC CONSEQUENCES OF THE BELMONT DOCTRINE ................................. 214 CONCLUSIONS .............................i................ 266 BIBLIOGRAPHY ........................................... 271 "This is government by lawsuit....Constitutional lawsuits are the stuff of power politics in America. Such proceed­ ings may for a generation or more deprive an elected Con­ gress of power, or may restore a lost power, or confirm a questioned one. Such proceedings may enlarge or restrict the authority of an elected President....Decrees in liti­ gation write the final word as to distribution of powers as between the Federal Government and the state govern­ ments and mark out and apply the limitations and denials of power constitutionally applicable to each...." Robert H. Jackson, The Struggle for Judicial Suprem­ acy (New York, 1941) , p. TST, "Legal doctrines are not self-generated abstract categories. They do not fall from the sky; nor are they pulled out of it. They have a specific juridical origin and etiology. They derive meaning and content from the circumstances that gave rise to them and from the pur­ poses they were designed to serve. To these they are bound as is a live tree to its roots." Associate Justice Felix Frankfurter, concurring opinion in Reid v. Covert, 354 U.S. 1 (1957), p. 50. vii CHAPTER I THE INTERNATIONAL POLITICS OF RECOGNITION On the evening of Thursday, November 16, 1933, Presi­ dent Franklin D. Roosevelt held his first annual dinner party for his cabinet. Besides the members of his council, Roosevelt had invited as guest of honor the visiting Soviet Commissar for Foreign Affairs, Maxim Litvinov, and key personnel of the Administration involved in untangling Soviet-American relations. A few of the guests drifted away after dinner? at eleven o'clock the President excused himself and went upstairs to his study. As he wheeled in, five people stood to greet him: Maxim Litvinov, Secretary of the Treasury Harry Woodin, Henry Morganthau, the chief of the Farm Credit Administration who would shortly re­ place Woodin, William C. Bullitt, FDR's personal advisor on Soviet affairs, and William Phillips, Under Secretary of State. Roosevelt presented Litvinov with seven notes to sign. These prepared drafts were the conditions the President demanded for American diplomatic recognition of Soviet Russia. Although the notes summarized the negoti­ ations of eight days, Litvinov still objected to the word­ ing of certain concessions. After further argument, the Commissar signed the drafts at about 1:40 a.m. Roosevelt joyfully signed five notes in exchange. To celebrate the resolution of sixteen years of misunderstanding, distrust, and political nonintercourse, the President quaffed with his guests the the last of the White House's illegal beer.'1' The signing of these twelve notes, dated November 16, 1933 (although really finalized early the following day) constituted the American recognition of the Communist government in Russia. The agreements which were negotiated preparatory to the official
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