Bricker's Last Stand

The number of times Senator Bricker has invoked the Constitution as the sacred vessel of all that is praise-worthy in America is past counting. His proposed amendment, thus, seems somewhat anamalous. Despite our feeling that cant has dominated his incantations, it is still surprising that so ardent a defender of the Constitution should want to alter that document as drastically as he does.

His amendment, if ratified, would affect two basic elements of the Constitution. It would reverse to a great extent the division of authority that gives the nation powers without which, so far as the world is concerned, it would cease to be a nation. And it would muddle the careful ordering of responsibility among the Congress, the states as a group, and the executive by which the Constitution assigns to each those decisions it is best fitted to make.

Section 2, for example, would subject a large portion of diplomatic business to a procedure fit only for Constitutional amendments. A treaty shall become effective as internal law of the United States only through legislation which would be valid in the absence of treaty. This is not a return to the Articles of Confederation by any means, for the federal government's share of power is much larger than it once was. Nevertheless, much of the most elementary stuff of foreign affairs would fall within Bricker's charmed circle. As the New York Times pointed out, even the common-garden "friendship, commerce, navigation" agreements which are made with every friendly nation in the world and which provide the foundations of all our foreign intercourse would come under the strictures of the which clause.

To expect all forty-eight states to revise their laws in accordance with a treaty and, independently of each other, come up with uniform revisions is wishful thinking. Indeed, a stumbling block of three quarters the size has kept Constitutional amendments to the minimum. Yet, it would be no less wishful thinking to expect any foreign power to negotiate anything with a country so tied and bound. At worst, necessary international dealings would be abolished; at best, routine matters would become equal in difficulty to negotiations with Russia over the atom bomb. This is not to speak of more important treaties affecting state law which the entire government, prompted by the most insistent necessity, might wish to pass some time in the future.

Section 3 is no better. Congress shall have the power to regulate all executive and other agreements with any foreign power or international organization . . . At present, executive agreements are an area of shared power where, as Justice Holmes commented, "the great ordinances of the Constitution do not establish and divide fields of black and white." Since the executive and the legislature both draw from their express powers authority to deal with such agreements, a balance has existed, preventing each from abusing the other. Administrative problems have thus remained where they should, within the executive sphere.

Section 3 would wipe out this balance by giving the legislature an exclusive, if residual, authority. Congress has been no less prone to abuse authority than the President, no less in need of the restraints inherent in a checks and balance system. Once Bricker had his way, the hundreds of agreements which diplomacy requires daily would become so many levers by which Congressmen could pry out of the executive satisfaction for their peeves and private theories.

Such levers need not be used: the mere threat of intervention by men who are ill-trained for administrative matters, who are organized for debate, not action, who lack staffs adequate even for their own tasks, and who are all too often moved by politics pure and simple, would be enough. It would be enough to demolish what remains of morale after years of abuse and charges of communism and homosexuality. It would be enough to destroy the already indifferent efficiency of an overgrown government. No doubt Congress is the best agency for charting courses, but it is worse than useless for sailing them.

The amendment, then, attacks two of the Constitution's most valuable principles, its distribution of authority and its balance of power. Why are Bricker & Company so anxious to junk the wisdom of those upon whose shades they so frequently call? They are afraid, apparently, that mistakes will be made, that some future President, Senate, House, and electorate will depart from the political ideas which they deem immutable. Aside from the arrogance of this stand, its rationale, that paralysis is better than risk of error, is appalling. It reflects the same mistrust of power that today makes France the picture of chaos. Even granting that the view of human nature taken by the founding fathers is less than optimistic, the cringing lack of faith in America's institutions and in the judgment of its citizens shown by the Bricker bloc is too morose to be a part of the Constitution.

It is also hopelessly impractical, for, while not disturbing one whit the heavy responsibility laid on the federal government, it deprives that agency of all but a fraction of the power necessary to discharge it. One suspects that behind the Senator's oratory lies the same isolationism which has marked his wing of the GOP for years, that the amendment is simply a bigger and better version of the wild attacks on the State Department. Unable to succeed straightforwardly, Bricker and his colleagues have launched an oblique attack, seeking to abolish foreign entanglements by abolishing the power to make them. They ignore the fact that the conditions which doomed their views when made in the open, namely, the state of world politics which requires an ever increasing participation by the United States, will mock whatever success they have by this method. For, if they succeed, they can only make America's inevitable involvement more perilous than even their wildest forebodings would now suggest.