Dear
Ed:1 Any student of foreign affairs knows that one of the most desperate needs of the free world today is more international trade.
Due to the under-development of many countries and their great need for capital goods before trade can have any real increase, private financing from the United States (the only real source of private capital left in the world) must enter these backward countries. Only in this way can they absorb our industrial and agricultural surpluses; only in this way can we get the vital raw materials we must have.
Numerous American business firms are ready and anxious to invest abroad. We want them to do so, but they demand, as a condition, that this government make treaties guaranteeing them (the companies) against the dangers of expropriation and confiscation.
All treaties of this type are traditionally made on a reciprocal basis--that is, any guarantee asked of a foreign nation is conceded by our own.
Suppose any such treaty undertakes to provide guarantees, under proper safeguards, that no American investment will be taken over by the government of another nation, except with just compensation, and that, if there is registered a complaint by our investor, the amount of such compensation shall be determined by mutual agreement between the two countries. In the event that such agreement could not be reached, the treaty might provide that the matter would be referred to a mutually agreed upon Arbitrator.
Under the second article of your proposed Amendment, this kind of treaty could not have any force within the United States and, therefore, we would have to sacrifice the nation's best interests in the matter. As I understand it, the method of determining the value of property, when expropriated by government, is prescribed in various state laws. Different echelons of government, below the Federal, not only have the authority to commandeer property when they so desire, but the courts can fix the price for it. This price must be accepted. So--we cannot make, under your suggestion, a treaty we badly need.2
A basic principle of treaty-making is that each of the representatives engaged in drawing up the agreement represents one nation. If either of these representatives attempts to represent forty-eight included states or governments, his efforts to produce agreements that will advance the interests of his own side, will be hopelessly handicapped--to the point, in some cases, of futility.
The argument presented by the supporters and opponents of the so-called Bricker Amendment do not affect me personally. Before such an Amendment could become law, the responsibilities I carry will be on someone else's shoulders. But I will never, under any circumstances, agree to the enactment of an Amendment which, for the first time in the life of our Constitution, attempts to attack the very basis of our governmental system--the proper division of governmental functions among the Legislative, Judicial, and Executive Branches. I am not going to be known in history as the Chief Executive who agreed to the emasculation of the Constitutional method for discharging one of the most serious responsibilities (treaty making) devolving upon the President, the Congress, and indeed the Courts.
I realize that the President has no official role in amending our Constitution. But he can fight them--to the bitter end. That, in the case of certain aspects of what is now proposed, I will do.
A lot of people apparently think that the suggested changes in our Constitution would have prevented some of the things that they believe happened at Yalta and Teheran.3 No amendment can have any effect on such things because those were wartime conferences, with our representative acting in his capacity as Commander-in-Chief of the Armed Forces. No matter how mistaken he may have been, no matter what errors of judgment or intent he may have made, this amendment (if then effective) could have had no effect on him as long as he was acting in his capacity of defending the country in time of war.
As for the peacetime need for such an amendment, it is idle to talk about the great danger of 160 million people losing their freedoms and rights through the provisions of a treaty. In the first place, such a fear presupposes an entirely venal President and a wicked two-thirds majority of the Senate. In the second place, it completely ignores the power of the Congress by a subsequent act of its own to nullify the provisions of a treaty. In the third place, it ignores the basic truth on which this country was founded, and which will be true as long as it exists. This truth is that all governmental power comes from the people. If the people as a whole should lose any guaranteed Constitutional right, I would hate to be the individual that would have to meet their wrath!
Finally, such a fear ignores the fact that the present Administration has, time and again, accepted unequivocably the first article you propose and has, in addition, agreed to accept the second, subject to the simple change of the words "act of Congress" for your final clause. In treaty making, I repeat, we can have one country only.4
There is one fact that is rarely mentioned. This country began functioning under the Constitution in 1789, and we have done pretty well. That successful record does not argue for serious tampering with the system that produces such results. People who hysterically fear that some such organization as the United Nations is going to take over the United States and control its internal affairs are some of the best creators of bogey men that I have yet encountered. As ever
P.S. Whether or not my legal argument is exactly correct, the principle on which I stand will, I hope, be apparent to you.5
