The Bricker Amendment is the collective name of a number of slightly different proposed amendments to the United States Constitution considered by the United States Senate in the 1950s. None of these amendments ever passed Congress. Each of them would require explicit congressional approval, especially for executive agreements that did not require the Senate's two-thirds approval for treaty. They are named for their sponsor, conservative Republican Senator John W. Bricker of Ohio, who distrusted the exclusive powers of the president to involve the United States beyond the wishes of Congress.
American entry into World War II led to a new sense of internationalism opposed by many conservatives. Frank E. Holman, president of the American Bar Association (ABA), called attention to federal court decisions, notably Missouri v. Holland, which he claimed could give international treaties and agreements precedence over the United States Constitution and could be used by foreigners to threaten American liberties. Bricker was influenced by the ABA's work and first introduced a proposed constitutional amendment in 1951. With substantial popular support and the election of a Republican president and Congress in the elections of 1952, together with support from many Southern Democrats, Bricker's plan seemed destined to pass Congress by the necessary two-thirds vote and be sent to the individual states for ratification by three-fourths of the state legislatures.
The best-known version of the Bricker Amendment, considered by the Senate in 1953–54, declared that no treaty could be made by the United States that conflicted with the Constitution; treaties could not be self-executing without the passage of separate enabling legislation through Congress; and treaties could not give Congress legislative powers beyond those specified in the Constitution. It also limited the president's power to enter into executive agreements with foreign powers.
Bricker's proposal attracted broad bipartisan support and was a focal point of intra-party conflict between the Eisenhower administration, which represented the more internationalist liberal Republican element, and the Old Right faction of conservative Republican senators, based in isolationist Midwestern strongholds. Despite the initial support, the Bricker Amendment was blocked through the intervention of President Dwight D. Eisenhower and Senate Minority Leader Lyndon Johnson. It failed in the Senate by a single vote in 1954, and was never voted on by the House. Duane Tananbaum, The Bricker Amendment Controversy: A test of Eisenhower's political leadership ( 1988).
Three years later the Supreme Court of the United States explicitly ruled in Reid v. Covert that the Bill of Rights cannot be abrogated by agreements with foreign powers. Nevertheless, Bricker's ideas still have supporters, and new versions of his amendment have been reintroduced in Congress periodically.
Historical background
Fears return after World War II The attack on Pearl Harbor temporarily silenced American non-interventionism; the America First Committee disbanded within days.Wayne S. Cole. Roosevelt & the Non-interventionists, 1932–1945. Lincoln, Nebraska: University of Nebraska Press, 1983. Chapters 32 and 33. However, in the final days of World War II, non-interventionism began its resurgence— non-interventionists had spoken against ratification of the United Nations Charter but were unsuccessful in preventing the United States from becoming a founding member of the United Nations.Wayne S. Cole. Roosevelt & the Non-interventionists, 1932–1945. Lincoln, Nebraska: University of Nebraska Press, 1983. 527. The vote in the Senate was held on July 28, 1945, and was ratified 89 to 2. Voting no were William Langer of North Dakota and Henrik Shipstead of Minnesota. Hiram Johnson of California would have voted no had he been able-bodied; he died on August 6, 1945. Suspicions of the UN and its associated international organizations were fanned by conservatives, most notably by Frank E. Holman, an attorney from Seattle, Washington, in what has been called a "crusade".Yong-nok Koo. Politics of Dissent in U.S. Foreign Policy: A Political Analysis of the Movement for the Bricker Amendment. Seoul: American Studies Institute at Seoul National University, 1978. 36.
Holman, a Utah native and Rhodes scholar, was elected president of the American Bar Association in 1947 and dedicated his term as president to warning Americans of the dangers of "treaty law."Frank E. Holman. The Life and Career of a Western Lawyer, 1886–1961. Baltimore, Maryland: Port City Press, 1963; Frank E. Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954. See also Yong-nok Koo. Politics of Dissent in U.S. Foreign Policy: A Political Analysis of the Movement for the Bricker Amendment. Seoul: American Studies Institute at Seoul National University, 1978. 21 et seq. Robert H. Jackson, later an Associate Justice of the U.S. Supreme Court, skeptically wrote of the authority of leaders of the bar associations, who "generally pyramid conservatism. At the top of the structures our bar association officials are as conservative as cemetery trustees." Robert H. Jackson. "The Lawyer: Leader or Mouthpieces?" Journal of the American Judicature Society. vol. 18 (October 1934). 72. Quoted by Tananbaum, 7. While Article II of the United Nations Charter stated "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state," an international analogue to the Tenth Amendment, Holman saw the work of the UN on the proposed Genocide Convention and Universal Declaration of Human RightsGladwin Hill. "U.N. Rights Drafts Held Socialistic: Holman, Bar Association Head, Warns They Would Renounce Many Basic U.S. Principles." The New York Times. September 18, 1948. 4. and numerous proposals of the International Labour Organization, a body created under the League of Nations, as being far outside the UN's powers and an invasion against American liberties.The Genocide Convention's text can be found on-line here .
Holman argued that the Genocide Convention would subject Americans to the jurisdiction of foreign courts with unfamiliar procedures and without the protections afforded under the Bill of Rights. He said the Convention's language was sweeping and vague and offered a scenario where a white motorist who struck and killed a black child could be extradited to The Hague on genocide charges.Tananbaum, 13. Holman's critics claimed the language was no more sweeping or vague than the state and federal statutes that American courts interpreted every day. Duane Tananbaum, the leading historian of the Bricker Amendment, wrote "most of ABA's objections to the Genocide Convention had no basis whatsoever in reality" and his example of a car accident becoming an international incident was not possible.Tananbaum, 14. Eisenhower's Attorney General Herbert Brownell called this scenario "outlandish".Herbert Brownell and John P. Burke. Advising Ike: The Memoirs of Attorney General Herbert Brownell. Lawrence, Kansas: University Press of Kansas, 1993. 265.
But Holman's hypothetical especially alarmed Southern Democrats who had gone to great lengths to obstruct federal action targeted at ending the Jim Crow system of racial segregation in the American South. They feared that, if ratified, the Genocide Convention could be used in conjunction with the Constitution's Necessary and Proper Clause to pass a federal civil rights law (despite the conservative view that such a law would go beyond the enumerated powers of Article I, Section 8).
President Eisenhower's aide Arthur Larson said Holman's warnings were part of "all kinds of preposterous and legally lunatic scares [that] were raised," including "that the International Court would take over our tariff and immigration controls, and then our education, post offices, military and welfare activities."Arthur Larson. Eisenhower: The President that Nobody Knows. New York: Charles Scribner's Sons, 1968. 144. In Holman's own book advancing the Bricker Amendment he wrote the UN Charter meant the federal government could: control and regulate all education, including public and parochial schools, it could control and regulate all matters affecting civil rights, marriage, divorce, etc; it could control all our sources of production of foods and the products of the farms and factories;... it could regiment labor and conditions of employment.Frank E. Holman. The Story of the "Bricker Amendment." New York City: Fund for Constitutional Government, 1954. 38.
Legal background
The United States Constitution, effective in 1789, gave the federal government power over foreign affairs and restricted the individual States' authority in this realm. Article I, section ten provides, "no State shall enter into any Treaty, Alliance, or Confederation" and that "no State shall, without the Consent of the Congress . . . enter into any Agreement or Compact with another State or with a foreign Power." The federal government's primacy was made clear in the Supremacy Clause of Article VI, which declares, "This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."In general on treaties and the Constitution, see Roger Lea MacBride. Treaties Versus the Constitution. Caldwell, Idaho: The Caxton Printers, 1953. While executive agreements were not mentioned in the Constitution, Congress authorized them for delivery of the mail as early as 1792.An Act to Establish the Post-Office and Post Roads Within the United States. Act of February 20, 1792. ch. 7. 1 Stat. 232.
Early precedents Constitutional scholars note that the supremacy clause was designed to protect the only significant treaty into which the infant United States had entered: the Treaty of Paris of 1783, which ended the Revolutionary War and under which Great Britain recognized the thirteen former colonies as thirteen independent and fully sovereign states.Definitive Treaty of Peace Between the United States of America and His Britannic Majesty. Treaty of September 3, 1783. 8 Stat. 80. Nonetheless, its wording ignited fear of the potential abuse of the treaty power from the beginning. For example, the North Carolina ratifying convention that approved the Constitution did so with a reservation asking for a constitutional amendment that No treaties which shall be directly opposed to the existing laws of the United States in Congress assembled shall be valid until such laws shall be repealed, or made conformable to such treaty; nor shall any treaty be valid which is contradictory to the Constitution of the United States.Akhil Reed Amar. America's Constitution: A Biography. New York: Random House, 2005. 307.