In this era of “America first,” when an upsurge of nationalism is sweeping the country (and, I might add, the rest of the world), the populist complaint is that ordinary people are being manipulated and exploited by the Davos crowd, a claque of would-be world-saving oligarchs. A political class that disdains Middle America and seeks to destroy their way of life is in the saddle, and one of their main weapons is the power to make international treaties. Such supra-national constructs as NAFTA, NATO, and the WTO are seen as sovereignty-destroying globalist schemes hatched by self-serving billionaires and their bought-and-paid-for politicians. Donald Trump won the White House on the basis of the former sentiment, railing against trade agreements and other treaties that he considers a “bad deal” for the American people.
Whether one agrees with Trump or not, the problem of international treaties superseding the U.S. Constitution and undermining the foundations of our republic is not a new one. The conservative movement of the early 1950’s, which rightly viewed the United Nations with extreme suspicion, was particularly sensitive to this threat, and they hit upon a solution: the Bricker Amendment.
Introduced into the Senate by Sen. John W. Bricker (R-Ohio) in February, 1952, as Senate Joint Resolution 130, the "Bricker Amendment" to the Constitution read as follows:
“Section 1. A provision of a treaty which conflicts with this Constitution 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 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.
“Section 4. The congress shall have power to enforce this article by appropriate legislation.”
Mobilizing to support Bricker, conservatives built a grand coalition which included all the major veterans groups, the Kiwanis Clubs, the American Association of Small Business, and many women’s groups, as well as the conservative activist organizations of the time, such as the Freedom Clubs and the Committee for Constitutional Government. The conservative press joined in the campaign; writing in Human Events, Frank Chodorov, an early libertarian publicist and author, said that:
“The proposed amendment arises from a rather odd situation. A nation is threatened by invasion, not by a foreign army, but by its own legal entanglements. Not soldiers, but theoreticians and visionaries attack its independence and aim to bring its people under the rule of an agglomeration of foreign governments. This is something new in history. There have been occasions when a weak nation sought security by placing itself under the yoke of a strong one. But, here we have the richest nation in the world, and apparently the strongest, flirting with the liquidation of its independence. Nothing like that has ever happened before.”
The breach in our defenses, said Chodorov, is in Article VI of the Constitution, which provides that "… All Treaties …shall be the supreme Law of the Land… any Thing in the Constitution to the contrary notwithstanding." At the time of the Founders, the division between foreign and domestic policy was clear enough; there was never any intention, as Jefferson wrote, to enable the President and the Senate to "do by treaty what the whole government is interdicted from doing in any way."
However, as the concept of limited government was eroded – and under pressure from the endless stream of pacts, covenants, and executive agreements issuing forth from the White House as well as the United Nations and its American enthusiasts – the chink in our constitutional armor widened. Just as the growth of administrative law had threatened to overthrow the old Republic during the darkest days of the New Deal, so under Truman and Eisenhower the burgeoning body of treaty law threatened to overthrow US sovereignty. U.S. foreign policy had created administrative law of a new type; treaties which sought to regulate domestic economic and social behavior to a degree never achieved by FDR’s Brain Trusters.
If the New Deal had failed to completely socialize America, to conservatives it often seemed as if the United Nations seemed determined to finish the job. According to the UN Declaration of Human Rights, human beings were endowed with all sorts of "rights," including the right to a job and the right to "security." There were, however, certain significant omissions, chief among them the right to own and maintain private property. Another equally glaring omission was the unqualified right to a free press, the regulation of which is left up to member nations. When three Supreme Court justices, including the Chief Justice, cited the UN Charter and the NATO treaty in support of their argument that Truman had the right to seize the steel mills, conservatives went into action – and the fight for the Bricker Amendment began in earnest.
The Eisenhower Administration, and particularly the US State Department, went all out to defeat the Amendment. Leading the opposition was Secretary of State John Foster Dulles. This was the same John Foster Dulles who had said, two years previously, that "The treaty power is an extraordinary power, liable to abuse," and warned that
“Treaties 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 federal government or to some international body and they can cut across the rights given to the people by their Constitutional Bill of Rights.”
Hammered with this quote by Clarence Manion, Dean of Law at Notre Dame University, and a leading proponent of the Bricker Amendment, Dulles could only take refuge in the argument that this President would never compromise US sovereignty.
Although the Bricker Amendment started out with fifty-six co-sponsors, it eventually went down to defeat in the U.S. Senate, 42-50, with 4 not voting. (A watered-down version, the "George proposal," lost by a single vote.) The defection of Senators William Knowland and Alexander Wiley from conservative Republican ranks on this occasion was particularly significant, and marked the beginning not only of Wiley’s chairmanship of the Senate Foreign Relations Committee, but also the decline of the movement to put and keep America first.
As the late Murray N. Rothbard put it in The Betrayal of the American Right, the Bricker Amendment was the “swansong of the Old Right,” the last major organizing effort of a conservative movement that was radically anti-statist and “isolationist” (i.e., pro-peace). Now, with the election of Trump and the rise of the old America First sentiment in the GOP, the Old Right is back – and it’s entirely appropriate that today’s activists pick up where their ideological ancestors left off.
In arguing against Bricker, the Eisenhower administration averred that it would unduly restrict the power of the President to conduct foreign policy. Bricker’s supporters argued that nothing less than the sovereignty of the country was at stake, and that, in any case, the President had no such exclusive power.
The Bricker Amendment is especially pertinent today, when the struggle to reassert congressional authority over US foreign policy – and specifically the war-making power – is taking center stage. The US is obligated by treaty to go to war if any one of the NATO countries is attacked – which means American troops may die to defend, say, Albania (a NATO member), or Montenegro (population less than one million) from an attack, either real or imagined. Congress can be bypassed because – the interventionists claim – we are obligated by the NATO treaty.
The trade agreements drafted by globalist bureaucrats are in Trump’s sights: the adoption of the Bricker Amendment would invalidate them all with a single blow. In short, Bricker is the perfect crusade for conservatives in the Age of Trump.
As Frank E. Holman, president of the American Bar Association, and the sparkplug of the original Bricker Amendment movement, wrote:
“In the destiny of human affairs a great issue like a righteous cause does not die. It lives on and arises again and again until rightly won. However long the fight for an adequate Constitutional Amendment on treaties and other international agreements, it will and must be won. This will be the history of the Bricker Amendment as it has been the history of all other great issues and causes.”
Holman’s comments were published in 1954 as Story of the Bricker Amendment, (The First Phase) – a title that one can only hope is prophetic.
Editorial note: Some of the material in this column appeared in a 2001 piece by me.
NOTES IN THE MARGIN
You can check out my Twitter feed by going here. But please note that my tweets are sometimes deliberately provocative, often made in jest, and largely consist of me thinking out loud.
I’ve written a couple of books, which you might want to peruse. Here is the link for buying the second edition of my 1993 book, Reclaiming the American Right: The Lost Legacy of the Conservative Movement, with an Introduction by Prof. George W. Carey, a Foreword by Patrick J. Buchanan, and critical essays by Scott Richert and David Gordon (ISI Books, 2008).
You can buy An Enemy of the State: The Life of Murray N. Rothbard (Prometheus Books, 2000), my biography of the great libertarian thinker, here.
