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27 Chapter Two “Treaty Law” and “Murdering Wives” The Widening of the Jurisdictional Gap Given that the ratification of the Geneva Conventions underlined the need to close the jurisdictional gap, it is striking that legislators did not raise the issue in their subsequent proposals for laws to fulfill this purpose. Their reticence is explicable by the political controversies surrounding international agreements that impinged on U.S. legal and constitutional matters. In the 1950s an important body of opinion in the United States considered international agreements to be vehicles for perceived “communistic” schemes to curtail Americans’ liberties and to restrict the sovereignty of the nation. These attitudes are evident in the debate about “treaty law” and the Bricker amendment. Sen. John Bricker, a Republican from Ohio and the author of the Bricker amendment, was a leading member of the school of thinking that regarded international organizations such as the United Nations as sources of potentially dangerous encroachments on American sovereignty. A former governor of Ohio and the Republican vice presidential candidate in 1944, Bricker was said to be “no savant”: “His mind had been compared to stellar space, a huge void filled with a few wandering clichés,” chief among which were anti-Communism and a suspicion of international organizations.1 A poll of Washington correspondents in 1949 voted him the worst senator, despite strong competition in the category.2 Bricker’s views on the threat posed by the U.N. and international agreements were influenced by Frank E. Holman, elected president of the American Bar Association in 1948. Holman, an archconservative and devoted supporter of the anti-Communist senator Joe McCarthy, was exercised about a host of international agreements emanating from the U.N. and, reviving constitutional issues that had arisen thirty years earlier, he warned that America’s entry into these agreements might override states’ prerogatives and abrogate constitutional protections of individual liberties.3 In September 1951 Bricker introduced the first of several proposals for a constitutional Chapter Two 28 amendment aimed at protecting the “sacred rights” that U.S. citizens enjoy “under the Bill of Rights and the Constitution.”4 Bricker’s and Holman’s agitation arose from their interpretation of the dangers posed by Article VI, § 2 of the Constitution (the Supremacy Clause). Under this clause, treaties constitute the supreme law of the land. Whereas statutes are made “in pursuance” of the Constitution, Article VI, § 2 specifies that treaties are made “under the Authority of the United States,” while Article II, § 2 states that treaties are made by the president, with the advice and consent of the Senate, so long as two-thirds of the senators concur. Critics of “treaty law” feared that the provisions of international agreements could therefore become U.S. law, enforceable on citizens and overriding state and federal laws with which they conflicted, without being approved by the lower house of Congress.5 The critics’ anxieties were exaggerated: the Supremacy Clause does not state that treaties are superior to the Constitution (and hence to the Bill of Rights) or to statutes. Bricker and his cohorts were nevertheless beset by fears about the damage that treaties might inflict on the checks and balances in the Constitution. They insisted that “no agreement with a foreign nation could deny Americans their constitutional rights nor enlarge the powers of either the executive branch or the federal government generally.” Anxious about foreigninspired , undemocratic impositions on the nation, Holman perceived threats to U.S. sovereignty and American liberties in the proposed Genocide Convention and the Universal Declaration of Human Rights as well as in many proposals of the International Labor Organization.6 Bricker named the Covenant on Human Rights, which codified the principles of the Universal Declaration of Human Rights, as one of the reasons for his introduction of a constitutional amendment, because it would have set economic and social rights on the same plane as the civil and political rights enshrined in the U.S. Bill of Rights.7 To conservatives the human rights treaties “represented instruments for legitimizing international review of U.S. domestic affairs, including the treatment of blacks; internationalization of a human rights standard that included Communist ideas; and federal action at the state and local level to remedy racial injustice.”8 As Natalie Kaufman argues, these worries emerged from a parochial and ethnocentric worldview, “a perspective suspicious or disdainful of things foreign,” and a strong belief in the superiority of the United States. As one Senate opponent of “treaty law” put it, “I don...


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