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Before there is a commitment, constitutional processes must operate. Our Constitution provides that Congress shall decide on whether or not the United States shall engage in war. Congress has not authorized war measures and therefore there is no commitment for the President to act upon.
At the same time President Johnson was declaiming that the United States must keep its so-called commitment to defend South Vietnam, he demonstrated that the word of the United States could not be relied upon by sending troops to the Dominican Republic in violation of the Organization of American States Charter, wherein it was agreed :
“The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever."
The President is restricted in dealing with other nations. The Constitution provides :
“He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, ..."
Except for ability to "receive ambassadors and other public ministers,” the President is hedged in by restraints. Nowhere in the Constitution is to be found authority for the President by himself alone to commit the nation to any international undertaking. That may be done only by treaty duly approved by the Senate, or by act of Congress where a treaty is not involved.
Recently President Johnson stated the United States is "firmly committed" to support the political independence and territorial integrity of all Middle East nations. His only basis for the statement appeared to be that our last four Presidents have so declared. If it depends upon what these Presidents have said, there is no commitment because Presidents are not empowered by the Constitution to commit the United States to any such undertaking.
When the Constitution is definite and precise regarding a procedure to be followed, it thereby is saying no other method is permissible. When the Constitution says "No," the Supreme Court has no authority to say "Yes."
Yet the Supreme Court has presumed to hold that a different method is permissible, i.e., the President alone may, without restriction, make treaties and thereby commit the United States. The attitude of the Court has been stated in the determination of several cases, one of which is United States v. Belmont regarding a presidential transaction (301 U.S. 324, 1937), from which the following excerpts are taken:
“Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government.'
There is nothing in the Constitution from which it may be inferred that the President is "the sole organ" of the United States in relation to treaties.
"We held (in Altman & Co. v. United States, 224 U.S. 583) that although this might not be a treaty requiring ratification by the Senate, it was a compact negotiated and proclaimed under the authority of the President, and as such was a treaty within the meaning of the Circuit Court of Appeals Act, the construction of which might be reviewed upon direct appeal to this Court."
The words "under the authority of the President" in relation to such a compact are unknown to the Constitution.
The Circuit Court of Appeals had previously held in the Belmont case “that a judgment for the United States could not be had, because . it would be contrary to the controlling public policy of the State of New York.” On this feature the Supreme Court went on to say:
**Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws as far as they contravene its operation, the treaty would be ineffective."
Madison, in the Virginia Convention, was speaking about the Constitution as then proposed and could have been referring, therefore, only to a treaty made in accordance with the constitutional provision, and in that respect his statement was sound. That was not the situation with which the Court was dealing, however.
“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. Of. Missouri v. Hol. land, 252 U.S. 416; Askura v. Seattle, 265 U.S. 332."
The argument would be appropriate as to a treaty approved by the Senate, but the so-called “treaty" then under consideration was not such a one; it was made by the President alone, contrary to the Constitution. Clearly the Court accorded the "treaty" in question the same degree of validity as that possessed by a regular treaty, even to the extent of overriding state constitutions and state laws. To complete the incongruity, the Court looked for support to the two cases cited, which involved treaties constitutionally made.
After World War II, Status-of-Forces treaties were made with Western European nations, whereby United States soldiers charged with crime against nationals of the nation concerned would be tried in that nation's courts, which treaties were submitted and approved by the Senate. Afterward the President alone made a similar arrangement with Japan, which on coming before the Supreme Court was held to be a valid treaty.
Thus it is seen that the Supreme Court gives a presidential "commitment," if it may be called such, exactly the same standing as a treaty made in accordance with the Constitution. It must follow, according to the Supreme Court, that a President may choose which method to pursue. He may perfunctorily refer a proposed treaty to the Senate, or if there should be doubt about Senate approval, or for any other reason, he may complete the transaction by himself. The Supreme Court would make a nullity of the treaty-making provision of the Constitution.
The Court cannot be said to have been "interpreting" the treaty provision, because that provision is a direction stated in such precise terms that interpretation is neither called for nor permitted. The Court has in fact been acting in defiance and violation of the Constitution.
The Supreme Court is not infallible. It concedes this when on occasion it overrules its own previous decisions. Nor is the Constitution "what the judges say it is;" it is what it itself says it is. A Supreme Court decision is not the "supreme law of the land." The Constitution states it thus:
“This Constitution, and the laws of the United States which shall be made in pursurance 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 ;
Treaties, to be valid, must be made “under the authority of the United States,”—in conformity with the Constitution—not “under the authority of the President," as stated by the Supreme Court.
The Supreme Court is subordinatenot superior—to the Constitution. Its members recognize this when they swear fealty upon taking office; but it is apparent that in relation to treaties, at least, they have presumed to place themselves above the Constitution when they arbitrarily accord to the President alone the power to make treaties. The Court is without authority to amend, remake or ignore any part of the Constitution.
All is not well with our Republic. The Executors of the Constitution have wandered far afield in conducting the affairs of government in at least two very vital aspects and must be headed off if constitutional government is to prevail. A President ambitious for power will not limit himself. The Supreme Court offers no hope. The task, then, devolves upon Congress, even though its tendencies toward weakness do not inspire great confidence.
It would be incumbent upon Congress to divest itself of the idea that a President is allwise and not subject to mistake; its members must be brought to realize that their allegiance is to the Constitution representing the people—not to the President. They must face up to the responsibility conferred upon them by the Constitution.
The impeachment provision is available. Either one or both Houses could correct the situation by refusing to implement in the slighest degree unauthorized military action and spurious treaties. If this or other measures having the same effect are not taken, the Constitution will be a shambles and we shall indeed have an elective monarchy with the President wielding unlimited power.
Madison recorded the view of Hugh Williamson, of North Carolina, as expressed in the Constitutional Convention, thus:
"Another objection against a single magistrate is that he will be an elective king and will feel the spirit of one ... It was pretty certain, he thought, that we should at some time or other bave a king, but he wished no precaution to be omitted that might postpone the event as long as possible."
Do we care enough to "postpone the event as long as possible" in our time? If we do, we should bestir ourselves without delay because the trend has already gone too far. Adoption of Senate Resolution 151 is a step in the right direction. Other steps may be necessary.
The CHAIRMAN. Mr. Montross. it is an extremely interesting and a well-prepared statement. I think you probably can judge from previous discussion that many members of this committee are very sympathetic to your point of view. Before he leaves for another engagement I would like to ask Senator Sparkman, do you wish to say anything?
PRAISE FOR STATEMENTS OF WITNESSES
Senator SPARKMAN. Mr. Chairman, I just want to say this: I do have an engagement at 12:15 and I must leave for it. I have read all three of the statements that have been submitted to us this morning. I followed Judge Lévitt while he was testifying, read his statement. I read Mr. Montross' statement earlier, and I have read Mrs. Broy's statement. I want to say that we have three very fine statements this morning, very persuasive, and very informative. I simply want to commend each and every one of them for making the presentation that has been made. I don't mean by that that I agree with everything that has been said, but I think in general principle they have been very good.
The CHAIRMAN. Senator Morse?
APPLICABILITY OF IMPEACHMENT PROVISION
Senator MORSE. I want to say, Mr. Montross, of course, I have already indicated this morning that I agree with much that you say. I have one question and that is one that deals with the material in your testimony. I don't know exactly how broad you wish to apply the language where you say "the impeachment provision is available." It is my view that there is no basis under the impeachment section of the Constitution for any impeachment of the President in respect to the Southeast Asia operation. I do not know whether you mean to apply that provision to the President in respect to what he has been doing under the Tonkin Bay resolution vis-a-vis Southeast Asia. But I do not think there is any basis at all under the Constitution for impeachment. Now, it may be that what you mean is that you are listing the checks that the Congress has, such as the check of the purse string which you referred to, in effect, in the statement, and that if any President, X, Y or 2, committed acts of treason, the impeachment provision would be available. But I don't know whether you mean to assume that it is applicable rather than available, that it is applicable under the present set of facts, and I think you ought to have an opportunity to clarify that.
Mr. MONTROSS. I think-of course, I have also made other suggestions about what might be done, but I think President Johnson is vulnerable. I think, as I see it, there has been-Congress has not authorized any actions, any military actions in South Vietnam. It merely said it is prepared to act, and the Southeast Asia Treaty I do not believe warrants, is any commitment which warrants, the President to take action, and I believe that those are violations of the law and I think that an official is subject to impeachment when he violates the law.
Senator MORSE. That is the major exception I take to your statement. Mr. MONTROSS. That is all right, Senator Morse.
Senator MORSE. I think impeachment as defined and set out in the Constitution involves a very limited set of facts concerning Presidential conduct. It has to border on treason and I do not think that there is the slightest basis for impeaching a President on the basis of any treasonable act.
The CHAIRMAN. Well, I take it, if I were to pursue that for a moment, the position of Mr. Montross is that ignoring or violating the Constitution is tantamount to treason; is that correct ?
Mr. MONTROSS. Pardon, Mr. Chairman?
The CHAIRMAN. Do you feel that the ignoring or violating, or refusing to follow the Constitution is tantamount to treason?
Mr. MONTROSS. Well, the impeachment provision provides for high crimes and misdemeanors, and that doesn't amount to treason.
The CHAIRMAN. Well, is it
Mr. MONTROSS. It is even for misdemeanors he is subject to impeachment.
The CHAIRMAN. Well, you heard the bell. Unfortunately we must go for another vote on the Williams amendment. This is a very interesting statement. I wish we could have time to go further into it, not only this provision but into other provisions.
ADOPTION OF S. RES. 151 FAVORED
May I ask by way of summary if you do favor the adoption of resolution 151?
Mr. MONTROSS. I favor the adoption of it; yes, sir.
The CHAIRMAN. Have you any amendments to suggest to it? Do you think it is adequate in its present form?
Mr. MONTROSS. I have not seen the actual resolution. I just know the general trend of it, and that trend I approve of heartily.
The CHAIRMAN. You saw an account of it in the newspaper, didn't you? It is a very simple resolution.
Mr. MONTROSS. Yes.
I appreciate very much, Mr. Montross, your coming here. You may be excused now.
Our next witness was Mrs. Cecil Norton Broy of Alexandria. Mrs. Broy, you understand the situation, the bell has just rung, much to my dismay, but it is so late in the day, I am afraid we will not be able to come back. I wonder if you could submit your statement for the record. I know it is a very fine statement and a very short one and we would include it in the record.
STATEMENT OF MRS. CECIL NORTON BROY, OF ALEXANDRIA, VA.
Mrs. Broy. Mr. Chairman, yes; and I may just say on behalf of the mothers and grandmothers of this country, we are grateful to you, and I may speak in that capacity as a woman who has been connected widely with many women's organizations in the country and appeared before this committee over the last 25 years. We are for the resolution. We think it is time for us to review our stand. I don't blame President Johnson altogether. This thing has been building up for some years.
Thank you for your resolution. I stand heartily in favor of it.
The CHAIRMAN. I appreciate very much your submitting the statement. It is a very short and a very concise, and I think, a very telling statement, and we are very pleased to have it.
Thank you very much.
STATEMENT OF MRS. CECIL NORTON BROY, ALEXANDRIA, VIRGINIA By the way of identification I am a resident and voter in Fairfax County, Virginia. I am a student of foreign affairs and lived for fourteen years in foreign countries as wife of United States Consul Charles Broy, a native of Rappahanock County, Virginia. While living with him in such important posts as London, England and Brussels, Belgium, I traveled widely in 14 European countries. Since Mr. Broy's death, I have continued my travels and studies, particularly of the Middle East.
In so far as my interest in good government is concerned, I learned much from my statesman first husband, the late Honorable Thomas Upton Sisson of Mississippi, a close personal friend of the late Speaker of the House of Representatives, Honorable Sam Rayburn. He was for some years the ranking Democrat of the Appropriations Committee of the House of Representatives.
At the present time I am engaged in writing a series of magazine articles addressed to American women regarding the present crisis in the Middle East. In 1965 I made a trip to the Middle East, visiting seven countries.
I understand, Mr. Chairman, that the purpose of S. Res. 151 is to make clear that the United States Senate believes that no commitment should be made by the United States to any foreign power without participation in such commitments by the representatives of the people of the United States who have been elected to the Senate.
I feel very strongly that our country is facing great danger in the present situation in which commitments to foreign policy are being made in the name of the United States without the participation of our legislators. I had made up my mind not to enter into any discussions with anybody at this time regarding Vietnam, but one morning, not too long ago, I heard over the television a U.S. General state that in 15 more years we could finish the War in Vietnam. I was startled—“15 more years," I said to myself, “Then the prophesies of Lenin and Stalin will surely come to pass if we keep on fighting for 15 more years.” You will recall, Mr. Chairman, that Lenin and Stalin said: “Leave the United States alone and she will bankrupt herself.” Mr. Chairman, our Republic cannot survive as a free and independent nation if we continue to spend our blood and money in wars nearly half-way around the globe-especially when months and months passed by when our precious sons were told that they must not attack any enemy planes under certain conditions nor must not damage the enemy airfields until they were fully completed. The war is costing, I'm told, 312 billion dollars a month, so it is easy for many of us women to wonder if not some blood and money aren't being wasted.
God's laws cannot be changed. Man's laws can be changed. Therefore, whatever interpretation some people have made of the “Geneva Agreement" or any other agreements that got us into this terrible situation, let us now, at the earliest possible moment, go back to Geneva and have the courage to take steps leading to our early withdrawal from Vietnam, since we have seen them through a democratic election, and leave them "to work out their own salvation.”