"(1) that the term 'national commitment' means 'a promise that is made by the people of the United States;'" This obviates anything being made as a promise by the President or by the Senate or by the House. It must be made by the people speaking in their constitutional way, of course.

Now "(2) that a national commitment can be made to a foreign nation or state or people or power only

"(i) in a treaty which is made by the President of the United States, by and with the advise and consent of the Senate, or

"(ii) in a law which is passed by the Congress of the United States." In both of those places you have the thing which the resolution is designed, I believe, to produce. If you have a treaty by and with the advice and consent of the Senate, there you have the Congress, that is the Senate part of the Congress, and the Executive functioning according to the provisions of the Constitution of the United States.

Where you have a law then you have also the two branches of the Government functioning before a promise can be given to a foreign people, nation, state, or power.

There is no ambiguity there because under the Constitution you must have both the President function or if the President declines to function, which he may do under the Constitution by either a veto or by a pocket veto, then the Congress itself may give the promise, that the people will do or not do something in the future for some other

person.

STUDY OF EXECUTIVE AGREEMENTS

Third, "that the treaty or law must state in express, clear, definite, precise and explicit words what the specific national commitment is." I don't want to be in a position anymore where we are with the Tonkin Bay resolution, with the Southeast Asia Treaty, with the activities against and for Rhodesia and the present developments that there are in the Congo. I don't want the executive agreement way of violating the Constitution of the United States to continue. I want to be clear. I am one of the few persons, I think, in the country-there may be two or three others who have made a study of the executive agreements. I have no hesitancy in saying that the President has repeatedly violated the laws and the Constitution of the United States in his executive agreements, and the Senate of the United States has violated the Constitution of the United States in giving its advice and consent to treaties which had been passed and are now making it necessary for me to live under things which I cannot challenge in the courts, because the Supreme Court has said I am not in any position to show that I have a specific evil directed against me. They are directed against all of the people of the United States.

So I want promises made by the people of the United States, through their official channels, to be clear and definite and specific, and expressed in terms that even a Philadelphia lawyer or a Massachusetts lawyer can understand.

And then fourthly, "that the treaty or the law must not violate, or be inconsistent with, any provision of the Constitution of the United States."

We have too many treaties that violate the Constitution of the United States, and thousands, I say thousands deliberately, of execu

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tive agreements which violate the Constitution of the United States if we can follow the Supreme Court decisions.

Senator HICKENLOOPER. Mr. Chairman, may I ask a question? The CHAIRMAN. Senator Hickenlooper.

Senator HICKENLOOPER. Judge Lévitt.

Mr. LÉVITT. Yes, sir.

WHEN DO EXECUTIVE AGREEMENTS VIOLATE THE LAW?

Senator HICKENLOOPER. I approach any matter of the Constitution with you with a great deal of deference because of your manifest devotion to this subject, but there are two things I would like to ask you. You said that the Executive has in, I have forgotten whether you said hundreds or thousands, of cases, violated the law in international agreements.

Mr. LÉVITT. In executive agreements, Senator.

Senator HICKENLOOPER. Executive agreements of an international nature. If those are approved by the Congress is one way or another as many of them have been, after the fact, does that violate the law? Mr. LÉVITT. Let me put it this way, sir. The Supreme Court decisions, let me bottom my opinion on them, the Supreme Court decisions and State courts have always said that where an instrument is unconstitutional, invalid, that its support or its continued following or its ratification does not give it the validity which it did not have when it was originally promulgated. So that what the Congress has done when it ratifies or let me make it specific. A statement is made in an executive agreement by the President saying that he will do something for Great Britain. It violates the Constitution, let's assume it. You now come to the House and the Senate for appropriation. You, therefore, appropriate certain sums for that purpose.

Senator HICKENLOOPER. Accompanied by an authorization to do certain

Mr. LÉVITT. Beg your pardon?

Senator HICKENLOOPER. Accompanied by an authorization to do certain things.

Mr. LÉVITT. Accompanied by an authorization.

Senator HICKENLOOPER. To do both?

Mr. LÉVITT. Yes.

Senator HICKENLOOPER. Not only an appropriation, but an authorization?

Mr. LÉVITT. Let's have a bill, you have an appropriation act. What you have there is a statement that $5 million will be given to Great Britain for something.

Senator HICKENLOOPER. Yes.

Mr. LÉVITT. Now why? Because of this agreement. The question then becomes whether you are exercising the powers of the Congress de novo, practically doing away with the executive agreement or not. If you are saying you are doing this because there is a commitment, a promise validly made, then you are wrong. If you are saying that under your powers as the Congress to provide for the common defense, say, you appropriate so much then it is all right, your appropriations act is good, but the executive agreement is bad.

WHEN IS AN EXECUTIVE AGREEMENT UNCONSTITUTIONAL?

Senator HICKENLOOPER. Well, Judge Lévitt, if the Supreme Court upholds an executive agreement, international agreement

Mr. LÉVITT. Yes.

Senator HICKENLOOPER (continuing). You still say that is unconstitutional if the Supreme Court says that it is constitutional? Mr. LÉVITT. With the exception of the Pink case I don't knowSenator HICKENLOOPER. I have the Pink case in mind. Mr. LÉVITT. You have the Pink case in mind?

Senator HICKENLOOPER. Yes.

Mr. LÉVITT. Well, now, if you will take

Senator HICKENLOOPER. I don't agree with it myself.

Mr. LÉVITT. Well, we are in accord, Mr. Hickenlooper.

Senator HICKENLOOPER. I don't think the decision is wise. I don't think it was well founded, but nevertheless it is the decision of the Court.

Mr. LÉVITT. May I be immodest enough to call attention to my book published in 1954, "The President and the Foreign Affairs of the United States," in which I compared the Belmont case and the Pink case, and showed that the Belmont case was practically properly done by the Supreme Court, and the Pink case was not a good decision. The Pink decision has not been followed since by the U.S. Supreme Court.

Your statement that if the Supreme Court-your question, if the Supreme Court does uphold an executive agreement does that make it constitutional, my answer is "No," because

Senator HICKENLOOPER. What remedy do you have?

Mr. LÉVITT. Now, that is a different matter. I would say to the Congress of the United States that we ought to have a remedy. At this moment I cannot challenge what I think ought to be challenged. Senator HICKENLOOPER. Let me ask you one other question. Mr. LÉVITT. Sir?

HOW CAN A TREATY VIOLATE THE CONSTITUTION?

Senator HICKENLOOPER. On No. 4, and this is the last one. I didn't mean to open the subject up so wide. On No. 4 of your amendment you suggest that the resolution should contain a statement that the treaty or law must not violate or be inconsistent with any provision of the Constitution.

Now, if you make a treaty, how is that in violation of the Constitution? Doesn't it become a part of the supreme law of the land? How can you violate the Constitution with the treaty?

Mr. LEVITT. Well, because of this: You really are playing upon the phrase "the supreme law of the land." Where you have a trinity in unity phrase like that, that the Constitution of the United States, treaties made pursuant or under the authority thereof and laws made pursuant thereto, then you have a threefold supremacy. Now either all three are supreme or else you have one supreme and the other two not.

The only one that can decide that question is the Supreme Court of the United States. The Supreme Court of the United States has decided that the only supreme law in the country is the Constitution,

and that a treaty and a statute are coordinate in their authority, and the one which is later in time will prevail. So that if you have a treaty presented to the Supreme Court which, say, was directly antagonistic to a specific phrase in the Constitution, then that treaty will be declared to be unconstitutional, and has been so declared unconstitutional by the Supreme Court. That is, a treaty is not so sacrosanct that it can do that which the Constitution says shall not be done.

If the President, for example, should enter into a treaty which would take away the rights of the people of the United States under the first amendment, to do what I am doing now, freedom of speech, that would be unconstitutional, and would be so decided, I believe, by the Supreme Court.

Senator MORSE. Would the Senator yield for a question on this point?

Senator HICKENLOOPER. I am all through, yes.

The CHAIRMAN. The Senator from Oregon.

Mr. LÉVITT. Yes, Senator Morse.

AMENDING THE CONSTITUTION

Senator MORSE. Mr. Lévitt, is it not true if the premise you lay down were not sound constitutional law then a President of the United States, with the ratification of the Senate could, in effect, amend the Constitution of the United States by way of a treaty?

Mr. LÉVITT. Yes, sir.

Senator MORSE. Which in itself would violate the amendment processes set forth in the Constitution itself?

Mr. LÉVITT. Right.

Senator MORSE. I think your position is unanswerable.

Mr. LÉVITT. I raise that question. May I, Mr. Chairman, advert to one thing, because in the testimony which you received here last week, I think it was last week, by a member of the faculty of a western university, there is what to me is the most extraordinary statement, that the Constitution has been amended by crisis. I suppose what he meant by that phrase was that the Constitution had not been followed in times of emergency. But to state that the Constitution is amended or can be amended by crisis is to say something which to me is, in accordance with Senator Morse, totally incredible and unbelievable. We say what we the people have said, how we amend the Constitution.

ARE SECTIONS OF THE CONSTITUTION OBSOLETE ?

The CHAIRMAN. Another witness said that certain sections of the Constitution have become obsolete because of changing conditions. Do you accept that?

Mr. LEVITT. No, sir.

I do not believe that any conditions that have changed in the country or in the world can make any provision of the U.S. Constitution obsolete until such time as it is impossible to have that particular provision apply. I know of no provision in the Constitution, and I have read it just as carefully as I have tried to read your resolution, Mr. Chairman. I know of no provision in the Constitution which has become obsolete from the standpoint of international law, national law,

or the pressurization of the freedom of the individuals in the United States, the people of the United States.

Senator MORSE. Will my chairman yield at this point only to bear out his question?

The CHAIRMAN. Yes.

Senator MORSE. Mr. Lévitt, will you agree with me that those who are arguing that there are sections of the Constitution that have become obsolete or outmoded, such as the former Attorney General of the United States and now the Under Secretary of State

Mr. LÉVITT. You mean that those persons have become outmoded? Senator MORSE. No. I am asking that those who argue that sections of the Constitution have become obsolete or outmoded are really saying in effect "we think that we ought to be allowed in the Executive branch of Government to consider that the Constitution in fact has been amended because we reach the judgment that part of it is obsolete," when the fact is they have serious question as to whether or not they could succeed in getting the Constitution amended under its amendment processes in respect to the judgments that they have reached, which meet the convenience of the Executive branch of Government. Do you not think that there may be some fairness in my analysis of what they are up to because they know that they couldn't succeed in getting it amended in accordance with law under the Constitution.

"POLICY OPINION" BY THE DEPARTMENT OF STATE

Mr. LEVITT. Not only do I agree with you, Senator Morse, but I would like to add to it. It is my belief that two things are happening in the State Department and have been happening there, to my personal knowledge for about 40 years. First, there has grown up since the Second World War more intensively than it has ever been in our history I believe, and it has emerged from time to time in periods of stress, the Civil War, for example, 1861-65, there has emerged the principle that to them is basic, which is, that whatever the State Department decides is right must be done by every other branch of Government.

Secondly, there is in the State Department a very serious division in cliques and into groups, so that they are fighting between themselves to get certain points of view adopted. And third, they take the position that, when they have a legal opinion to give, and I say this without meaning to impugn the motives of any one of the legal advisers in the State Department, it is their method, their way of life, when they have an opinion to give, they ask first what is the position taken and, secondly, how can we support it?

The only way in which I can look with any amount of respect on the statements which you have here, which I got from the State Department, of the Legal Adviser, Mr. Meeker, and of Mr. Katzenbach here before this committee, is to say that they are dealing as hired attorneys to give the best possible case for their client. I cannot believe that Mr. Katzenbach meant what he said-I can't believe he meant it as a lawyer, and as a former Attorney General of the United States. He was now speaking a "policy opinion" to support what the President or the group under the President of advisers wanted, his opinion supporting what they wanted.

I know this is a rather harsh statement, but I have been through it so many times that I think I may say it advisedly.