edited by
MARVIN R. ZAHNISER
John W. Bricker Reflects
Upon the
Fight for the Bricker
Amendment
John W. Bricker, long a prominent name
in the politics of Ohio and
the United States, will forever be known
to students of American his-
tory as the author of a proposed
amendment to the Constitution.1 Pop-
ularly called the Bricker Amendment,
this Senate Joint Resolution was
first introduced on September 14, 1951,
as Senate Joint Resolution 102.
Following extensive consultation, Senate
hearings, and much national
publicity, the proposed Amendment was
presented to the Senate for a
climactic vote on February 26, 1954. The
version most widely debated
within the Senate had the following
three major sections:
Section 1: A provision of a treaty which
conflicts with this Consti-
tution shall not be of any force or
effect.
Section 2: A treaty shall become
effective as internal law in the
United States only through legislation
which would be valid in the
absence of a treaty.
Section 3: Congress shall have power to
regulate all executive and
other agreements with any foreign power
or international organization.
All such agreements shall be subject to
the limitations imposed on
treaties by this article.
There have been various interpretations
suggesting why the Bricker
Amendment was proposed. Most analysts
concur that the executive
agreements concluded by Franklin D.
Roosevelt during the Second
Marvin R. Zahniser is Professor of
History at The Ohio State University. He wishes
to thank Professor Joseph May of
Youngstown State University for sharing his wide
knowledge of the background to the
Bricker Amendment.
1. Mr. Bricker served as Ohio's Assistant
Attorney General, 1923-1927; as Attorney
General, 1933 1937; and as Governor from
1939-1945. In 1944 he was Thomas E.
Dewey's vice-presidential running mate
on the losing Republican ticket. He was elected
Senator from Ohio in 1946, which
position he held until 1958 when he was defeated by
Democrat Stephen M. Young. Mr. Bricker
is presently senior partner in the Columbus,
Ohio, law firm of Bricker, Evatt, Barton
& Eckler. Mr. Frank E. Holman, Seattle attor-
ney and past president of the American
Bar Association, must likewise be recognized
as a major architect of the Bricker
Amendment. A short but stimulating discussion
over the fight for adoption of the
Bricker Amendment is found in Herbert S. Parmet,
Eisenhower and the American Crusades (New York, 1972), 305-13.
Bricker Amendment 323
World War deeply alarmed constitutional
conservatives. They per-
ceived that power to conclude such
agreements, particularly when they
were sustained as valid by the United
States Supreme Court, gave to
the presidency enormous and dangerous
powers that were not assigned
in the Federal Constitution.
Alarm about the widening powers of the
presidency had, of course,
matured during the 1930s when President
Franklin Roosevelt had been
given great latitude by Democratic
congresses to direct far-ranging
programs. Fears that Roosevelt might
misuse the expanding powers of
his office were confirmed, conservatives
insisted, when one examined
the wartime agreements such as those the
president negotiated at the
Yalta Conference. Clearly, conservatives
argued, it was time that some
fundamental action be taken to check the
power of the presidency to
conclude executive agreements,
especially regarding their effects on
domestic law at the national and state
levels.
As Senator Bricker makes clear in the
following speech, there was
also genuine concern in postwar America
about the United Nations and
the extent to which American national
life, institutions, and the per-
sonal rights and liberties of its
citizens might be reshaped by the United
Nations. In the climate of postwar
anxiety, anger with Roosevelt over
wartime executive agreements that had
been concluded, unhappiness
over rulings by the Supreme Court that
sanctioned wide use of such
agreements, President Harry Truman's
decision to commit troops to Korea
without prior congressional approval,
and fears about the role of the
Soviet Union and her client states
within the United Nations, it is
understandable why conservatives
determined to take steps to restrict
to traditional limits presidential
initiative in foreign affairs and judicial
interpretation of its scope.
With this brief background, it is
interesting to note the setting in
which Senator Bricker placed his
proposed Amendment when speaking
on August 13, 1976, to a convention of
foreign policy historians meeting
in Columbus, Ohio. Mr. Bricker does not,
as one might expect, place
emphasis upon the cause celebre of
wartime executive agreements. Nor
does he even mention the names of
Franklin D. Roosevelt and his
wife Eleanor, one the negotiator of
executive agreements, the other
active in United Nations affairs. Instead,
Mr. Bricker takes the high
ground that the Constitution was being
subverted by a variety of insti-
tutions. In his arguments he points to
decisions by the Supreme Court,
going back to 1920, that sanctioned ever
wider scope for the exercise
of presidential initiative in foreign
affairs. These rulings he found truly
alarming as he did efforts by United
Nations commissions to establish
bodies having international executive
and juridical authority. As for
the presidency, Senator Bricker and his colleagues
believed the powers
324 OHIO HISTORY
of the executive in foreign affairs had
grown so dramatically that pru-
dence urged some step be taken to
define, and perhaps circumscribe,
those powers.
Students of the 1950s will find Senator
Bricker's brief roll call of
those playing an influential opposing
role to the amendment an inter-
esting one. There is Dwight D.
Eisenhower, at first apparently supportive
of the Amendment, unduly influenced in
midstream by John J.
McCloy, and in the last stages of the
fight openly opposing adoption of
the Amendment. Mr. Bricker clearly
believes that Eisenhower acted
unconstitutionally in intervening to
prevent Senate approval of the pro-
posed amendment.
John Foster Dulles appears in this
account as an ambitious syco-
phant, shifting his position in keeping
with prevailing White House
winds and the opinions of east coast
Republicans. Dulles, charges
Bricker, never changed his mind about the
dangers of treaty law, only
his public stance. In this
interpretation of a shifty and devious
Dulles, Senator Bricker is in step with
several major interpretations of
Dulles as politician and diplomat.
Many constitutional historians may not
agree with Senator Bricker's
sweeping statement concerning
interpretation of the Constitution since
1920. Neither are historians of the
Eisenhower era likely to agree fully
to his view about the key role of John
J. McCloy in leading Eisenhower
to oppose the Amendment. Most certainly,
many will disagree with
Senator Bricker's contention that the
Amendment, if adopted in a form
acceptable to him, would not have unduly
hampered the presidency in
the area of foreign affairs. Whichever
side one takes on the issues
addressed by the Bricker Amendment, it
seems clear that the central
concern of presidential discretion in
conducting foreign relations is not
a dead one.
The following is an after-dinner speech
by Senator Bricker. By no
means was the speech intended as his
definitive defense of the Bricker
Amendment. Rather, the presentation was
designed to be brief, full of
personal anecdote, and to present Mr.
Bricker's more vivid impressions
of the roles played by some major
figures in the amendment fight and of
the issues that stimulated him to
propose the Bricker Amendment.
*
* *
It is very difficult in a short time to
completely encompass the meaning
of the so-called Bricker Amendment which
was submitted to the Senate
some twenty-five years ago. However,
there is still a deep interest in it.
I receive letters every week from
students and teachers all over the
country in regard to the Amendment and
its meaning. Several senators
have talked to me about reviving
interest in it and I have told them that
Bricker Amendment 325 |
|
it would take four or five years of work and education of the people to bring it about. Each senator then seemed to lose personal interest. Let us first review the meaning of the federal constitution. Legis- lative power is given to the Congress; executive power to the president; judicial power to the Supreme Court. Checks and balances are also included such as the veto power of the president, the ruling on uncon- stitutional laws by the Supreme Court, and through such powers as presidential appointment of members to the Court. It is that distribution of authority, with the checks and balances and the rights of the Ameri- can people under the Constitution and the Bill of Rights, that I was attempting to preserve against the encroachments by treaty law. Article VI of the Constitution provides: 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, anything in the Constitution or laws of any state to the contrary notwithstanding.
The issue of authority, and the controversy over arrangement of the |
326 OHIO
HISTORY
checks and balances, prevailed
throughout the drafting of the Consti-
tution. As historians will remember,
Alexander Hamilton opposed
adoption of the Bill of Rights on the
basis that it was not necessary to
prohibit from the Federal government the
powers not authorized in the
Constitution itself. Thomas Jefferson
held to the contrary position that
it was necessary to have a Bill of Rights
to protect the American people
from the invasion of their rights under
the new Constitution. It was also
necessary to adopt the Bill of Rights in
order to get ratification of the
Constitution itself. Both Jefferson and
Hamilton did agree, however,
that Article VI [above quoted] did not
give power under treaty to
annul any of the provisions of the
Constitution or the rights of the
States. For 125 years the Supreme Court
also held to that theory.
Then came a relatively unimportant ease
known as Missouri vs.
Holland which held that the powers of the state could by treaty
be
transferred to the Federal Government.
That ruling by the Supreme
Court did not create a great deal of
debate or confusion in the public
since the only question involved was the
control of migratory birds.2
Subsequently in the Pink case
from New York, which arose over an
executive agreement by the passing of
two letters between Maxim
Litvinof of Russia and President
Franklin D. Roosevelt, certain laws of
the state of New York were completely
nullified and the powers of
individuals under the Fifth Amendment
were nullified by denying the
true owners of an insurance company,
licensed in New York, due pro-
cess of law. The owners' property was
taken by the Federal government
without just compensation.3
2. In the State of Missouri v.
Holland (252 U.S. 416), 1920, Missouri contested the
constitutionality of the Migratory Bird
Treaty Act of July 3, 1918, a statute passed by
Congress in pursuance of the Migratory
Bird Treaty of August 16, 1916, a treaty con-
cluded between the United States and
Great Britain. Missouri argued that the statute
invaded the sovereign rights reserved to
the states under the Tenth Amendment and
was therefore unconstitutional.
Speaking for the Court, Mr. Justice
Holmes concluded that the Tenth Amendment
was not violated by the Migratory Bird
Treaty Act or by the treaty upon which the
statute was based. The power to conclude
treaties on matters of proper national concern
had been delegated to the Federal
government by the Constitution. The treaty itself
had been duly negotiated and ratified.
Furthermore, said Holmes, "a national interest
of very nearly the first magnitude is
involved. It can be protected only by national ac-
tion in concert with another power. The
subject matter is only transitorily within the
State and has no permanent habitat
there. . . . We see nothing in the Constitution that
compels the Government to sit by while a
food supply is cut off and the protectors of our
forests and our crops are
destroyed."
Constitutional historians do not believe
that a careful reading of the decision lends
support to Senator Bricker's contention
that Missouri v. Holland "held that the powers
of the state could by treaty be
transferred to the Federal Government." See Louis Hen-
kin, Foreign Affairs and the
Constitution (Mineola, NY, 1972), 143-48.
3. United States v. Pink (315
U.S. 203), opinion of the Court rendered on February
2, 1942, by Mr. Justice Douglas. This
case involved an action by the United States
Bricker Amendment 327
With the creation of the United Nations
and our support and adher-
ence to it, a new problem arose. It was
no doubt the intent of many that
establishment of the United Nations
marked the beginning of World
Government in which the United States
would be a participant and
subject to the orders, the legislation,
and the directives of the United
Nations. However, there was written into
the charter of the United
Nations a provision that it should not
interfere with the domestic
rights of the participating states. Had
it not been for that provision, I
am confident that the original charter
of the United Nations would not
have been ratified as a treaty by the
United States.
No sooner though had the organization
been set up than the One
World movement began efforts to
superimpose the power of the United
Nations upon the participants. Motions
were made in the Senate of the
United States to call a Constitutional
Convention for One World Gov-
ernment. Books were written about it.
Wendell Willkie's book, One
World, was characteristic of the viewpoint. Opposition arose
to the
One World program and it seemed
impossible to get it through the
Congress of the United States.
Adherents of the one world philosophy
then tried another approach
to achieve their goal. The various
bodies of the United Nations imme-
diately began drafting treaties for
submission to the membership.
There were some two hundred of them
under preparation when you
consider the ones in the International
Labor Organization to which the
United States was a party. Two of the
outstanding treaties that were
to be proposed were the Covenant of
Human Rights which, briefly,
would have deprived the United States of
its power in many respects
against Louis H. Pink, Superintendent of
Insurance of the State of New York, et al., to
recover the remaining assets of the New
York branch of the First Russian Insurance
Company. The Court took the general
position that state law must yield when it is incon-
sistent with the provisions of a treaty
or an international compact or agreement that is
properly drawn and within the power of
the executive to negotiate. This decision was
consistent with the landmark Belmont decision.
See United States v. Belmont et al. (301
U.S. 324), 1937. Speaking for the Court,
Mr. Justice Sutherland stated: ". . . in respect
of all international negotiations and
compacts, and in respect of our foreign relations gen-
erally, state lines disappear ....
Within the field of its powers, whatever the United
States rightfully undertakes, it
necessarily has warrant to consummate. And when
judicial authority is invoked in aid of
such consummation, State Constitutions, state
laws, and state policies are irrelevant
to the inquiry and decision. It is inconceivable
that any of them can be interposed as an
obstacle to the effective operation of a federal
constitutional power."
When Belmont and Pink were
read in the light of Missouri v. Holland, as well as the
landmark U.S. v. Curtiss-Wright
Export Corp. (299 U.S. 304), 1936, it appeared to
Mr. Bricker and his supporters that the
president had the power to make executive
agreements, almost without regard to
constitutional authorization or restraint. Others
believed a fairer statement might be
that the Court, through these decisions, left ample
room for expansion of presidential power
to make treaties and executive agreements
that might override state laws in some
instances.
328 OHIO HISTORY
and which would have permitted freedom
of speech, the press, and
non-interference in religious matters to
be nullified by law of the coun-
try. If accepted, Congress could by law
modify, qualify, and really annul
the provisions of the Bill of Rights.4
A second proposed agreement was the
Genocide Convention which
is so obtuse and indefinable in its
wording that any decision on it could
not very well be made. The United States
representative at the United
Nations had signed the Genocide Treaty
and recommended that it be
adopted as a treaty. The treaty makes
genocide an international
crime defined as including: (A) killing,
causing serious bodily or mental
harm; (B) imposing methods intended to
prevent births with the intent
to destroy wholly or in part any group.
Those violating the treaty could
be tried in the country where the charge
was filed or in an Inter-
national Court to be created where all
the protecting provisions of the
United States Constitution would be as
naught.
The United States representative on this
matter tried to insert into
the Convention the implication that
governments themselves could be
called to account on genocide charges.
Russia and its friends opposed
it and it was turned down. So the
treaty, as proposed, would apply to
individuals or groups of individuals
while governments were free to do
what they wanted to do in this field.
The purpose of the treaty, of
course, was to prohibit genocide such as
Hitler carried out in Germany
and which was also being carried out by
the communist government in
Russia against racial minorities.5 But
we were left with the vague
definition of genocide and the potential
threat that our rights under the
Constitution would be annulled.
The intent of the treaties to be
presented was first made public by Mr.
John P. Humphrey, the first Director of
the Commission on Human
4. Mr. Bricker's concern extended beyond
constitutional questions. In a speech de-
livered on April 22, 1952, Senator
Bricker warned: "Having failed to win approval for
socialism in domestic legislation,
enemies of the free enterprise system are turning to
treaties and executive agreements. Most
of these treaties originate in the United Na-
tions. . . . Our present tax rates are
dangerously near the Marxian level. . . . Inter-
national socialism, like its domestic
counterpart, requires permanent legislation vesting
broad powers in a centralized authority.
The United Nations is attempting to prepare a
blueprint for world socialism . . "
Quoted in William O. Walker, "John W. Bricker
and Joseph R. McCarthy: The Cold War at
Home and Abroad, 1950-1954" (M.A. thesis,
The Ohio State University, 1968), 91-92.
Senator Bricker and colleagues who opposed
United States adherence to various
United Nations statements supporting human rights
were successful. See "U.S. Policy
on Human Rights," U.S. Department of State Bulle-
tin, XXVIII, 579-80.
5. See "Convention on the
Prevention and Punishment of the Crime of Genocide.
Adopted by the General Assembly of the
United Nations on 9 December 1948" in A
Survey of Treaty Provisions for the
Pacific Settlement of International Disputes, 1949-
1962 (New York, 1966), 521 22.
Bricker Amendment
329
Rights, who said:
What the United Nations is trying to do
is revolutionary in character. Human
rights are largely a matter of
relationship between the State and individuals,
and therefore a matter which has been
traditionally regarded as being within
the domestic jurisdiction of states.
What is now being proposed is, in effect, the
creation of some supernational
supervision of this relationship . . .
6
It will be noted that there have already
been several charges of geno-
cide filed against the United States in
the United Nations. Of course,
nothing came of them. During Mr.
Truman's term as president, neither
the Genocide Convention or treaty nor
the Human Rights Convention
was approved by the Senate or by
two-thirds of those present and
voting. Nevertheless, such treaty
efforts caused widespread concern
within the United States that the rights
of our citizens might be denied
through treaty or by executive
agreements.
Some of these issues were addressed on
April 11, 1952, by Mr. John
Foster Dulles, later to be Secretary of
State under President Eisen-
hower, in a speech before a regional
meeting of the American Bar
Association at Louisville, Kentucky.
Particularly interesting to me was
the following statement:
The treaty-making power is an
extraordinary power, liable to abuse. Treaties
make international law and also they
make domestic law. Under our Consti-
tution, Treaties become the supreme law
of the land. They are, indeed, more
supreme than ordinary laws, for
Congressional laws are invalid if they do not
conform to the Constitution, whereas
Treaty law can override the Constitution.
Treaties, for example, can take powers
away from the Congress and give them
to the president; they can take powers
from the States and give them to the Fed-
eral government or to some international
body, and they can cut across the
rights given the people by their
Constitutional Bill of Rights.
Subsequent to that speech, in the period
before the time that Mr.
Eisenhower was elected president, Mr.
Dulles voluntarily came to my
office and discussed with me the grave
dangers of treaty law and sug-
gested that something be done about it
to protect the American people
in their form of government and in their
individual rights. That was
after the first draft of the proposed
Bricker Amendment was filed as a
Joint Resolution in the Senate.
I discussed the Amendment with General
Eisenhower during the presi-
dential campaign of 1952. Immediately
following the election he
seemed very favorable to it. But before
the inauguration of President
Eisenhower, and after Mr. Dulles was
known to be the incoming Sec-
6. It was called to the editor's
attention that Mr. Humphrey used the word "suprana-
tional" not
"supernational" as quoted by Senator Bricker. This misquotation was a
com-
mon one in the literature supporting
adoption of the Bricker Amendment.
330 OHIO HISTORY
retary of State, Mr. Dulles called me
from New York and asked me not
to file the Amendment at the upcoming
Senate session. I told him that
I had talked to him about it earlier,
was in full agreement with what he
said about the dangers of treaty law at
Louisville, and that I believed
the Amendment necessary then as I
believe it is now and that I was
going to refile it at the opening
session of the Senate. Then came the
hearings before the Senate (although
there had been an extensive
record of hearings made under the Truman
Administration) in which
Mr. Dulles and Mr. Herbert Brownell, as
Attorney General, made cer-
tain objections to the Amendment. Never
at any time did Mr. Dulles
reverse his thinking of the speech at
Louisville as far as the testimony
was concerned.
Soon after President Eisenhower came to
power he called various
members of the Senate to his office to
consult on matters of importance,
in his judgment, that would be met in
the first year of his administra-
tion. He brought up what was known as
Senate Joint Resolution #1 at
that time, which would limit the power
of treaties and executive agree-
ments as domestic law and I explained
the Resolution as thoroughly as
I possibly could in the time we had.
There were four other Senators
present and President Eisenhower said as
I left: "I will put my sword
and sidearms on for that because it is
good constitutional law and it is
in the Resolutions of the Republican
Convention," meaning the Repub-
lican party platform.
There had been some difference between
the Resolution of the
American Bar Association and my own
Amendment. The Resolution of
the American Bar contained a
"which" clause not in my first draft, a
clause I did not think was necessary and
do not yet. But the Committee
of the American Bar which had worked so
diligently on this matter
insisted upon it and I agreed to include
it because I thought it was not
important, one way or the other.7 I
did cover the matter of Executive
Agreements in my amendment, which the
American Bar had not
included originally, but that was agreed
to also. There was great feel-
ing among the lawyers of the country on
the proposed Amendment,
and the educational program lasted for a
number of years. Finally,
there was definite support by truly a
cross section of the people of our
country. Among those who supported it
were the American Legion,
Veterans of Foreign Wars, Chamber of
Commerce of the United States,
American Farm Bureau Federation,
National Association of Evangelicals,
American Medical Association, and the
National Small Business As-
7. See p. 1 of this article,
"Section 2." Mr. Bricker's original version in 1953 read:
"A treaty shall become effective as
internal law only through the enactment of appro-
priate legislation by the
Congress."
Bricker Amendment
331
sociation.8 Among those who
opposed the Amendment were Americans
for Democratic Action, American Jewish
Congress, American Federa-
tion of Labor, and the United World
Federalists.9 I should add that
those who supported the Amendment
included many state legislatures,
every American state bar which
considered it, although not the New
York City Bar. Many organizations were
especially created throughout
the various states during the consideration
of the Amendment and at
one time we received in support
petitions signed by 400,000 people.
At one time during a conference I held
with President Eisenhower, he
said, "If this [proposed Amendment]
takes away the power of the
President in treaty-making, I shall
oppose it." I replied that if George
Washington had taken the same attitude,
there would have been no
Bill of Rights. At no time before this,
to my knowledge, did a president
of the United States interfere with the
consideration of a Constitutional
Amendment. Mr. Eisenhower's opposition
only came toward the last
of the considerations thereof, although
there was much maneuvering by
subordinates of the president to prevent
its consideration and to get
nullifying amendments.
In January 1954 a night letter was sent
to the president by John J.
McCloy of New York, who, with John W.
Davis and others, was very
active in opposition, insinuating that
the proposed Amendment would
harmfully limit the power of the
president. It is a rather indefinite
statement but Mr. McCloy says in this
letter that he has studied the
Amendment thoroughly, but his later
statements belie that fact. The
president answered on January 13
thanking him and said that a long
study had been made by his associates
and himself of this matter. He
even proposed an amendment, he said,
which would do part of the
things that my Amendment provided (the
so-called Knowland Amend-
ment) but saying that he fully shared
the belief that no amendment was
necessary. Mr. Eisenhower never made
such a statement to me at any
time until after the letter was received
from Mr. McCloy. Mr. Eisen-
hower then had one of his Cabinet
members tell me about it. On
8. Senator Bricker also listed the
following supportive organizations: Marine Corps
League; Military Order of the World
Wars; United Spanish War Veterans; Catholic
War Veterans; Kiwanis International;
National Grange; National Defense League of
America; National Society, Sons of the
American Revolution; National Society, Daugh-
ters of the American Revolution;
Colonial Dames of America; National Association of
Pro America; National Society for
Constitutional Security; American Flag Committee;
Steuben Society of America; Conference
of State Manufacturers' Association; South-
ern States Industrial Council; National
Labor-Management Council on Foreign Trade
Policy; National Association of Real
Estate Boards; Freedom Clubs, Inc.; American
Progress Foundation.
9. Also mentioned by Senator Bricker
were: B'nai B'rith; American Association for
the United Nations; American Civil
Liberties Union; American Association of Univer-
sity Women.
332 OHIO
HISTORY
January 18 Mr. McCloy wrote the
president a five-page letter in
which he did not discuss the Amendment,
but at length tried to con-
vince the president that passage of the
Amendment would be a reflec-
tion upon his position in the United
States among the nations and
leaders of the world. Evidently Mr.
McCloy was a good psychologist.10
Remember in your considerations that
only five countries make
treaties the domestic law. The only one
of relative importance in the
whole list is France. In all other
countries it takes domestic law to make
a treaty effective within the country.
Under my proposed Amendment,
it would have become mandatory that
treaty provisions, including
executive agreements, only become
effective if their terms were
constitutional.
At one time a man, who shall remain
unnamed, was hired by Sec-
retary Dulles to spend his time in
opposing the Amendment. This man
subsequently said in a conference which
I attended that if this Amend-
ment passed, we could not enter into a
treaty of friendship and com-
merce with any nation. I immediately
told him that either he did not
know what the Amendment proposed or
that, if he did, he knew very
well that it would not interfere with
such treaties. He made no answer.
In the midst of the fight over the
Amendment, George Humphrey,
Secretary of the Treasury, once called
me to his office and told me that
the president had decided to go all out
in opposition to the Amendment.
Under the Constitution, as I said
earlier, the president has no rightful
function in considering proposed
constitutional amendments. But Mr.
Eisenhower began a lobbying process
among those who had originally
signed the Amendment and intended to
vote for it.11 Humphrey sug-
gested I meet at lunch with him and the
Secretary of State, which I
did. I then asked Mr. Dulles if there
were provisions or state laws that
he wished to annul or wipe out by treaty
and he said, "None." I asked
if he still believed what he said at
Louisville and he said he did. I said,
10. John J. McCloy, a personal friend of
Mr. Eisenhower, had served as Assistant
Secretary of War, 1941-1945; President
of the World Bank, 1947-49; and as United
States Military Governor and High
Commissioner for Germany, 1946-49. John W
Davis, New York lawyer, had been the
Democratic party's presidential candidate in
1924. Copies of McCloy's night letter to
Eisenhower of January 8, 1954; Eisenhower's
response to McCloy on January 13, 1954;
and McCloy's longer analysis, dated January
18, 1954, are in Senator Bricker's
personal papers in Columbus, Ohio. Senator Bricker
kindly made these letters available to
the editor. McCloy's letter of January 18 is a pow-
erful summary of the arguments used by
those opposed to the Amendment.
11. Senator Bricker tried to neutralize
Eisenhower's lobbying when he said on the
Senate floor: "The fact remains . .
. that the President has no Constitutional role in
the amending process. I hope that the
President will not be persuaded to try to trans-
form a great Constitutional issue into a
personal one." Congressional Record, 83rd
Congress, 2nd session (January 22,
1954), 637.
Bricker Amendment
333
"You write it then," and his
only answer was, "I don't have the time."12
So then the campaign became open and on
the day of the vote the
president had three lobbyists in the
Senate cloakroom, two of whom
told me that they approved of the
Amendment but had to follow
directions. I think they changed but few
votes. The president himself
had already done that. However, one
senator voted for the Amendment
who had not even signed the original
draft because of the attempted
interference by the president.13
I need only say that at the present time
there is pending before the
Senate of the United States a genocide
treaty called up by President
Nixon during his last campaign. It has
been reported to the Senate but
I do not believe that there will be any
action on it soon. Such treaties
underline that an amendment similar to
the one I drafted and submitted
almost twenty-five years ago is needed
now as much as ever.
The opposition to the Bricker Amendment
was demagogic and for
the most part rested upon unfounded
fears. Oftentimes the opposition
came from those who had no comprehension
either of the Holland or
the Pink case or the
constitutional issues involved.
I do not believe that anyone who
switched his vote was ever
reelected, and the Amendment was an
issue in many of those elections.
Most of my Senate colleagues involved in
the fight over the Amend-
ment are now gone.
Every lawyer, every member of Congress
and the president himself
takes an oath to support and defend the
Constitution of the United
States. But the Bricker Amendment, or a
similar amendment, is the
only way that we can protect ourselves
from the disastrous results of
the assumption of power by the Supreme
Court to annul over 125 years
of our experience. Out of our historical
experience was laid the founda-
tion of the greatest self-governing
Nation of free people of all time. We
dare not let it be destroyed by the
fuzzy-thinking One Worlders.
12. "You write it then" was
Senator Bricker's invitation to Secretary of State Dulles
to draft an amendment that was in
keeping with Dulles' stated convictions and ac-
ceptable to the Eisenhower
Administration.
13. In late February 1954, the decisive
vote on the Amendment was taken. Senator
Walter F. George of Georgia had
submitted his compromise version of the Amendment.
The Amendment was defeated by one vote,
sixty yeas to thirty-one nays. See Journal of
the Senate, 82nd Congress, 2nd session, February 26, 1954, 159.
Even if approved by
the Senate the Amendment would have had
to be endorsed by three-fourths of the states
within a seven-year period.
Senator Eugene Milliken of Colorado,
although not an original sponsor of the Amend-
ment, voted for it, Senator Bricker
believes, in protest against Eisenhower's lobbying.
For another view of the presidential
influence on the final vote, see Gary W. Reich-
ard, The Reaffirmation of
Republicanism (Knoxville, 1975), 66-68.
edited by
MARVIN R. ZAHNISER
John W. Bricker Reflects
Upon the
Fight for the Bricker
Amendment
John W. Bricker, long a prominent name
in the politics of Ohio and
the United States, will forever be known
to students of American his-
tory as the author of a proposed
amendment to the Constitution.1 Pop-
ularly called the Bricker Amendment,
this Senate Joint Resolution was
first introduced on September 14, 1951,
as Senate Joint Resolution 102.
Following extensive consultation, Senate
hearings, and much national
publicity, the proposed Amendment was
presented to the Senate for a
climactic vote on February 26, 1954. The
version most widely debated
within the Senate had the following
three major sections:
Section 1: A provision of a treaty which
conflicts with this Consti-
tution shall not be of any force or
effect.
Section 2: A treaty shall become
effective as internal law in the
United States only through legislation
which would be valid in the
absence of a treaty.
Section 3: Congress shall have power to
regulate all executive and
other agreements with any foreign power
or international organization.
All such agreements shall be subject to
the limitations imposed on
treaties by this article.
There have been various interpretations
suggesting why the Bricker
Amendment was proposed. Most analysts
concur that the executive
agreements concluded by Franklin D.
Roosevelt during the Second
Marvin R. Zahniser is Professor of
History at The Ohio State University. He wishes
to thank Professor Joseph May of
Youngstown State University for sharing his wide
knowledge of the background to the
Bricker Amendment.
1. Mr. Bricker served as Ohio's Assistant
Attorney General, 1923-1927; as Attorney
General, 1933 1937; and as Governor from
1939-1945. In 1944 he was Thomas E.
Dewey's vice-presidential running mate
on the losing Republican ticket. He was elected
Senator from Ohio in 1946, which
position he held until 1958 when he was defeated by
Democrat Stephen M. Young. Mr. Bricker
is presently senior partner in the Columbus,
Ohio, law firm of Bricker, Evatt, Barton
& Eckler. Mr. Frank E. Holman, Seattle attor-
ney and past president of the American
Bar Association, must likewise be recognized
as a major architect of the Bricker
Amendment. A short but stimulating discussion
over the fight for adoption of the
Bricker Amendment is found in Herbert S. Parmet,
Eisenhower and the American Crusades (New York, 1972), 305-13.